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SPERLING v. HOFFMANN-LA ROCHE

April 30, 1996

RICHARD SPERLING, FREDERICK HEMSLEY, and JOSEPH ZELAUSKAS, individually and on behalf of all other persons similarly situated, Plaintiffs,
v.
HOFFMANN-LA ROCHE, INC., a New Jersey corporation, Defendant.



The opinion of the court was delivered by: ACKERMAN

 Ackerman, D.J.

 This is a putative class action brought by former employees of Hoffmann-La Roche, Inc. ("Roche"), alleging violations of the Age Discrimination in Employment Act ("ADEA"), 29 US.C. § 621 et seq.

 On February 4, 1984, Roche discharged or demoted approximately 1,100 employees pursuant to a reduction in force ("RIF"), known as Operation Turnabout. Based on Roche's conduct during the RIF, Richard Sperling, one of the employees and a named plaintiff in this case, filed an age discrimination charge with the Equal Employment Opportunity Commission ("EEOC") on behalf of himself and all employees similarly situated. Thereafter, on May 7, 1985, Sperling, along with the other named plaintiffs, filed this action on behalf of themselves and all others similarly situated, alleging, among other things, that the defendant discriminated against them in violation of the ADEA. Subsequently, 476 of the over 1,100 employees affected in the RIF opted-in as members of the putative class.

 Now before the court are motions by both parties. Plaintiffs move, pursuant to Federal Rule of Civil Procedure 42(b), for an order bifurcating the trial in this case into two stages: (1) a Stage I trial regarding the issue of whether Roche engaged in a pattern or practice of age discrimination against the class; and (2) a series of Stage II trials that would address the liability and damages issues relating to the individual plaintiffs. Defendant Roche moves for summary judgment dismissing plaintiffs' pattern-or-practice claim.

 On May 26, 1995, oral argument was heard on Roche's appeal from this decision. In Plaintiffs' Brief in Opposition to Roche's Appeal from the Special Master's Denial of Roche's Motion for Summary Judgment Regarding Plaintiffs' "Pattern or Practice" Claims [hereinafter "Plaintiffs' Pattern-or-Practice Opposition Br."], plaintiffs "requested a continuance, pursuant to [Federal Rule of Civil Procedure] 56(f), to complete discovery and present the full panoply of its pattern or practice evidence in opposition to this motion." See Plaintiffs' Pattern-or-Practice Opposition Br. at 25. After being informed by the Special Master that such discovery would be completed in early December, I granted plaintiffs' request in a Letter Opinion & Order dated November 2, 1995. The parties completed the filing of their supplemental submissions in early January 1996.

 Because the resolution of these motions involve questions of law only, I must review the Special Master's opinions de novo. See Prudential Ins. Co. of America v. U.S. Gypsum Co., 991 F.2d 1080, 1086 n.11 (3d Cir. 1993) (citing Stauble v. Warrob, Inc., 977 F.2d 690, 697 (1st Cir. 1992)). In addition, due to the granting of plaintiffs' request pursuant to Federal Rule of Civil Procedure 56(f), there is an issue presently before the court that the Special Master did not have the opportunity to address, i.e., whether or not, given the "full panoply" of plaintiffs' pattern-or-practice evidence, a reasonable jury could find that Roche engaged in a pattern or practice of discrimination. *fn3" When ruling on this issue, the standard of review is obviously the same standard that is applicable to the motion for summary judgment on which the Special Master did rule.

 After summarizing the procedural history of these motions and the Special Master's opinions, I will address the issues presented by Roche's motion for summary judgment dismissing plaintiffs' pattern-or-practice claim and the subsequent Rule 56(f) supplementation of the record. As will be discussed, the resolution of this motion moots plaintiffs' motion for bifurcation.

 I. Procedural History and the Special Master's Opinions

 Plaintiffs moved before the Special Master for an order, pursuant to Federal Rule of Civil Procedure 42(b), bifurcating the trial in this case into two stages: (1) a Stage I trial regarding the issue of whether Roche engaged in a pattern or practice of age discrimination against the class; and (2) a series of Stage II trials that would address the liability and damages issues relating to the individual plaintiffs. In response to this motion, Roche moved for summary judgment on plaintiffs' pattern-or-practice claim. Because the granting of Roche's motion would moot plaintiffs' bifurcation motion, the parties and the Special Master considered the two motions together. In an opinion, dated August 30, 1994, the Special Master held that plaintiffs' motion for bifurcation should be granted and defendant's motion for summary judgment dismissing plaintiffs' pattern-or-practice claim should be denied.

 The factual background on which the Special Master based his rulings in this opinion is as follows:

 
Roche is a large New Jersey drug manufacturer with a European parent. In the mid 1980s, Roche's parent directed it to reduce costs, partly by reducing the size of its workforce. Roche carried this order out in two ways. First, it eliminated certain job types altogether. A number of plaintiffs apparently were terminated in consequence. Second, it reduced the number of employees in each department. A Roche task force prepared a set of guidelines to instruct managers in individual departments when these managers were deciding whom to release. The "line" managers then made termination decisions, apparently without further direction from senior Roche executives.
 
Roche claims that the RIF was a "one-shot" occurrence, and plaintiffs offer no evidence that Roche is contemplating another series of large scale dismissals. There is also little evidence that Roche systematically violated the ADEA before the date of the RIF or immediately thereafter. Thus plaintiffs' case turns on whether Roche violated the ADEA in connection with the RIF.
 
Roche's RIF guidelines explicitly directed its managers not to discriminate on the basis of age, race or sex when making termination decisions. Plaintiffs claim that the guidelines nevertheless left the individual managers with considerable discretion. The managers allegedly exercised this discretion, sometimes consciously and sometimes not, in contravention of the guideline's explicit anti-discrimination directives and in contravention of the law; that is, Roche's managers terminated plaintiffs on account of their age. Plaintiffs also claim that Roche violated the ADEA in connection with planning the RIF as well as executing it.

 Opinion of Special Master, August 30, 1994, at 2-3 [hereinafter "Pattern-or-Practice Opinion"].

 Roche made two arguments in support of its motion for summary judgment dismissing plaintiffs' pattern-or-practice claim.

 First, Roche argued that pattern-or-practice claims are appropriate as a matter of law only where the class plaintiffs seek to enjoin the defendant from engaging in existing or threatened discriminatory behavior. Because Operation Turnabout has been completed and because the guidelines seemingly have no further application, there is, according to Roche, no illegal behavior to enjoin. Therefore, Roche argued that plaintiffs can challenge the RIF under the ADEA, but not in the form of a pattern-or-practice case.

 The Special Master did not find this argument persuasive. If an employer is found to have engaged in a pattern or practice of discrimination, then class action plaintiffs are entitled to classwide, prospective injunctive relief. The Special Master correctly noted, however, that other benefits accrue to the plaintiffs upon a finding that an employer engaged in a pattern or practice of discrimination. Specifically, "when a pattern or practice of discrimination is found, the persuasion burden on the issue of whether the employer discriminated [against individual class members] shifts to the defendant." Pattern-or-Practice Opinion at 6. Thus, the Special Master held that, in addition to obtaining injunctive relief, "a principal point of permitting class action plaintiffs to attack a pattern or practice of unlawful behavior is to shift the persuasion burden." Id. at 9 (emphasis in original). In addition, "the Supreme Court's grounds for shifting the persuasion burden apply as strongly when class action plaintiffs primarily seek money as when they also seek an injunction against continuing violation of the law." Id. at 10. Therefore, the Special Master rejected Roche's argument that pattern-or-practice cases are not proper where there is no claim for injunctive relief against existing or threatened unlawful behavior.

 Second, Roche argued that, as a matter of law, a "one-shot" event cannot constitute a pattern or practice of discrimination. Therefore, according to Roche, because Operation Turnabout was a one-shot event (i.e., there is no evidence that Roche has engaged in other large scale dismissals or that Roche has systematically violated the ADEA before or after the RIF), plaintiffs' pattern-or-practice claim must be dismissed and plaintiffs' motion for bifurcation must be denied. The Special Master held that a one-shot event could not constitute a "practice" because "a 'practice' is the consistent application of a policy through time." Pattern-or-Practice Opinion at 11. However, the Special Master also held that the element of duration that is implicit in a "practice" is "neither logically nor linguistically necessary to the finding of a "pattern" of discrimination." Id. This is because, in this case, approximately 1,100 employees were dismissed. Therefore,

 
if a sound statistical test establishes that Roche dismissed older workers at a rate that is statistically significantly higher than would have occurred by chance, and if there also is persuasive anecdotal evidence that the Roche managers who planned and conducted the RIF were motivated by age bias, then a jury could permissibly find that a "pattern" of discrimination on the basis of age likely existed.

 Id. at 14. For these reasons, the Special Master denied Roche's motion for summary judgment.

 Roche argued that it has a due process right "to prove that it relied on reasonable factors other than age when deciding to discharge "each of the plaintiffs'; and that it is entitled to 'a single presentation of the evidence for each individual claim for relief.'" Pattern-or-Practice Opinion at 16. In other words, Roche claimed that if it were prohibited from introducing evidence regarding its reasons for terminating each individual plaintiff at the Stage I trial (where the only issue would be whether or not Roche engaged in a pattern or practice of discrimination and not whether or not each individual plaintiff was discriminated against), then Roche's Fifth Amendment right to due process would be violated. The Special Master held that Roche's Fifth Amendment rights would not be violated because, although Roche would be prohibited from introducing evidence regarding every plaintiff, Roche could "introduce direct statistical evidence, anecdotal evidence, illustrative evidence of individual dismissals and any other evidence that bears on the issue of whether a pattern of discrimination existed . . . ." Pattern-or-Practice Opinion at 20. In addition, Roche could introduce evidence relating to individual claims at the Stage II trials where the issue of which individuals are entitled to relief would be litigated. Id. The Special Master also noted that bifurcated trials are the standard means by which pattern-or-practice claims are tried. Therefore, the Special Master rejected Roche's Fifth Amendment due process challenge.

 As mentioned above, Roche also argued that bifurcation would violate its rights under the Seventh Amendment. The Seventh Amendment provides, in part, that "no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of common law." The Special Master stated that "the Seventh Amendment right derives from two goals, preventing jury confusion and avoiding inconsistent verdicts." Pattern-or-Practice Opinion at 17. Roche argued that bifurcation could result in inconsistent verdicts. More specifically, Roche argued that bifurcation could result in a finding at the Stage I trial that Roche engaged in a pattern or practice of discrimination, but at the Stage II trials Roche could still conceivably demonstrate that most, if not all, of the individual plaintiffs had not been the victims of discrimination. The Special Master held, however, that while this situation certainly presents a risk of inconsistent verdicts, that risk is slight in pattern-or-practice case. This is because, given the proofs required for a finding of a pattern or practice of discrimination, "if plaintiffs do prove at a Stage I trial that a pattern of illegal discrimination existed, the chances are low that Roche could show, in a large number of later stage trials, that it did not discriminate against individual plaintiffs." See Pattern-or-Practice Opinion at 18-19. Therefore, the Special Master rejected Roche's Seventh Amendment challenge.

 For these reasons, the Special Master granted plaintiffs' motion for bifurcation and denied defendant's motion for summary judgment dismissing plaintiffs' pattern-or-practice claim.

 Although he noted that at this point in time he could not specifically state how a Stage I trial should be conducted, the Special Master did discuss in the opinion "some broad guidelines" regarding the conduct of the State I trial. See Pattern-or-Practice Opinion at 21-25. Plaintiffs will introduce (1) expert testimony regarding whether or not older employees were discharged at a statistically significant rate and (2) anecdotal evidence, through the testimony of individual plaintiffs and perhaps Roche managers, that individual Roche managers were animated by illegal bias. Roche would be permitted to introduce its own statistical evidence. In addition, Roche could introduce testimonial and documentary evidence to the effect that its managers acted lawfully when deciding what jobs to eliminate and whom to dismiss and that it was not Roche's policy to discriminate. The Special Master also stated that

 Pattern-or-Practice Opinion at 23.

 The Special Master revisited the question of what types of evidence Roche would be permitted to introduce at the Stage I trial in an opinion dated March 8, 1995 [hereinafter "Bifurcation Opinion"]. This opinion was prompted by Roche's revelation of the strategy it intended to pursue at the Stage I trial. Roche informed the plaintiffs and the Special Master that it would attempt to disprove plaintiffs' pattern-or-practice claim by showing that a majority of the plaintiffs, of whom there are 476, were dismissed lawfully. To establish this, Roche intended to call a large number of witnesses. Because Roche's strategy seemed novel, the Special Master asked the parties to brief the issue of whether or not Roche could pursue this strategy.

 Subsequently, the Special Master held that Roche is prohibited from pursuing this strategy, because allowing Roche to pursue it would vitiate the standard procedure of bifurcating pattern-or-practice cases into a Stage I trial at which the issue of whether the employer engaged in a pattern or practice of discrimination against the class is litigated and Stage II trials at which the liability and damage issues relating to the individual plaintiffs is litigated. This is because Roche's strategy would force plaintiffs to contest Roche's evidence as to a majority of the plaintiffs at the Stage I trial. Thus, "plaintiffs would have to establish the illegality of each individual discharge without the benefit of the presumption of discrimination to which their proof [might] otherwise entitle them." Bifurcation Opinion at 7 (emphasis in original). Roche's strategy would in effect collapse the Stage II trial into the Stage I trial. Therefore, the Special Master held that Roche could not pursue this strategy. Although the precise number of witnesses that Roche would be permitted to call still could not be determined, the Special Master identified the following relevant categories of evidence that Roche should be permitted to introduce:

 
(a) statistical evidence either original or in rebuttal; (b) documentary evidence, such as materials relating to the planning and conduct of the RIF; (c) anecdotal evidence in rebuttal and otherwise; and (d) illustrative testimony that Roche managers complied with the law when making termination decisions.

 Bifurcation Opinion at 11-12 (emphasis in original).

 The Special Master's opinions make clear that two things are at stake in the resolution of these motions: (1) whether the plaintiffs will have an opportunity to demonstrate a pattern or practice of discrimination, and thereby, if so demonstrated, benefit from the resulting shift to Roche of the burden of persuasion on the issue of whether individual plaintiffs were victims of discrimination; and (2) assuming that plaintiffs have the opportunity to prove a pattern or practice of discrimination, in what manner will this issue be litigated. Thus, the threshold issue is whether or not, as a matter of law, there is a viable pattern-or-practice claim in this case.

 As discussed above, before the Special Master, Roche made two arguments in support of its assertion that there is no pattern-or-practice claim in this case -- (1) pattern-or-practice claims are only appropriate where the class plaintiffs seek to enjoin the defendant from engaging in existing or threatened discriminatory behavior; and (2) a "one-shot" event cannot constitute a pattern or practice of discrimination. Due to the granting of plaintiffs' request pursuant to Rule 56(f), there is a third issue before the court -- whether or not, given the "full panoply" of plaintiffs' pattern-or-practice evidence, a reasonable jury could find that Roche engaged in a pattern or practice of discrimination.

 II Summary Judgment Standard

 Federal Rule of Civil Procedure 56 provides that summary judgment may be granted only if the pleadings, supporting papers, affidavits, and admissions on file, when viewed with all inferences in favor of the nonmoving party, demonstrate that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed. R.Civ. P. 56(c). See also Todaro v. Bowman, 872 F.2d 43, 46 (3d Cir. 1989); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.), cert. dism'd, 483 U.S. 1052 (19877. The substantive law will identify which facts are "material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Therefore, "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. An issue is "genuine" if a reasonable jury could possibly hold in the nonmovant's favor with regard to that issue. Id.

 At the summary judgment stage, a court may not weigh the evidence or make credibility determinations--these tasks are left to the factfinder. Petruzzi's IGA v. Darling-Delaware, 998 F.2d 1224, 1230 (3d Cir.), cert. denied, 114 S. Ct. 554 (1993). Therefore, to raise a genuine issue of material fact, "'the [summary judgment] opponent need not match, item for item, each piece of evidence proffered by the movant,' but simply must exceed the 'mere scintilla' standard." Id. See also Anderson, 477 U.S. at 252 ("The mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].").

 If the court determines that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law, then summary judgment may be granted.

 III. The Parameters of a Pattern-or-Practice Claim

 As stated above, Roche made two arguments before the Special Master in support of its motions for summary judgment on plaintiffs' pattern-or-practice claim -- (1) pattern-or-practice claims are appropriate only where the class plaintiffs seek to enjoin the defendant from engaging in existing or threatened discriminatory behavior; and (2) a "one-shot" event cannot constitute a pattern or practice of discrimination. Roche also argues, in its brief submitted in opposition to plaintiffs' Rule 56(f) submission, that plaintiffs' class-wide claim is actually a disparate impact claim and not a pattern-or-practice claim. See Memorandum of Hoffmann-La Roche Inc. in Response to Plaintiffs' Rule 56(f) Submission on Their "Pattern-or-Practice" Claim at 12 ("If plaintiffs as a factual matter have any class-wide claim at all on their theory of 'unplanned' and 'unconscious' stereotyping, it is a disparate impact claim and not a pattern-or-practice claim") (emphasis in original). All of these arguments are in effect alternative arguments in support of the proposition that, even assuming that plaintiffs' allegations regarding the manner in which Operation Turnabout was conducted are true, these allegations are insufficient to bring this case within the parameters of a pattern-or-practice case. Prior to addressing these arguments, I will discuss the law regarding what constitutes a pattern or practice of age discrimination.

 A. Pattern or Practice of Age Discrimination

 Initially it should be noted that the Age Discrimination in Employment Act ("ADEA"), the statute pursuant to which the action now before the court was brought, does not explicitly provide for pattern-or-practice claims. Rather, the statutory basis for pattern-or-practice claims is found in Section 707(a) of Title VII of the Civil Rights Act of 1964 ["Title VII"], which provides, in part, that

 
whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by [Title VII], and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights [described in Title VII], the Attorney General may bring a civil action . . . requesting such relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, as he deems necessary to insure the full enjoyment of the rights herein described.

 42 U.S.C. § 2000e-6(a). *fn4" Although this section does not explicitly authorize private litigants to bring pattern-or-practice claims, courts, including the Supreme Court, have implicitly approved of pattern-or-practice claims being brought by private litigants in the form of a class action. See, e.g., Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876 n.9, 81 L. Ed. 2d 718, 104 S. Ct. 2794 (1984) (stating that "although Teamsters[ v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977)] involved an action litigated on the merits by the Government as plaintiff . . ., it is plain that the elements of a prima facie pattern-or-practice case are the same in a private class action"). Furthermore, although the ADEA does not explicitly provide for pattern-or-practice claims, courts have applied the law developed in the context of Title VII pattern-or-practice claims to claims of age discrimination. See, e.g., King v. General Electric Company, 960 F.2d 617 (7th Cir. 1992); EEOC v. Western Electric Company, Incorporated, 713 F.2d 1011 (4th Cir. 1983); EEOC v. Sandia Corporation, 639 F.2d 600 (10th Cir. 1980). Therefore, opinions discussing the meaning of "pattern or practice" in the context of Title VII are equally applicable to actions brought under the ADEA.

 In an action alleging that an employer engaged in a pattern or practice of age discrimination, the ultimate factual issues are whether there was a pattern or practice of disparate treatment and, if so, whether the differences in treatment were due to age. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977) [hereinafter "Teamsters "]. Before discussing what constitutes a "pattern or practice," it is helpful to first discuss what constitutes disparate treatment based on age.

 Disparate Treatment : An employer engages in disparate treatment where it treats some people less favorably than others because of a protected trait. See id. at 335 n.15. To succeed on a disparate treatment claim, "proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment." Id. (citations omitted). *fn5"

 The language of the ADEA makes clear that a disparate treatment theory is available under the statute. See Hazen Paper Company v. Biggins, 507 U.S. 604, 113 S. Ct. 1701, 1706, 123 L. Ed. 2d 338 (1993) [hereinafter "Hazen Paper "]. The ADEA provides, in part, that

 
it shall be unlawful for an employer . . . to discharge any individual . . . because of his age.

 29 U.S.C. § 623(a) (1) (emphasis added). Under the ADEA, "a disparate treatment claim cannot succeed unless the employee's [age] actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome." Hazen Paper, 113 S. Ct. at 1706. See also Miller v. Cigna Corporation, 47 F.3d 586, 595 (3d Cir. 1995) (holding that plaintiff in an ADEA case "has the burden of persuading the trier of fact by a preponderance of the evidence that there is a 'but-for' causal connection between the plaintiff's age and the employer's adverse action").

 Hazen Paper, 113 S. Ct. at 1706 (citations omitted).

 In Hazen Paper, the Supreme Court emphasized that when an employer's decision is entirely motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes is not present. See id. This is the case even where the motivating factor is correlated with age. For example, pension status is typically correlated with age. However, if an employer fires an employee solely because the employee's pension is about to vest, the employer does not violate the ADEA, even if older employees are more likely to be close to having their pensions vest than younger employees. See id. at 1706-07. This is because

 
the prohibited stereotype ("Older employees are likely to be ") would not have figured in this decision, and the attendant stigma would not be the result of an inaccurate and denigrating generalization about age, but would rather represent an accurate judgment about the employee--that he indeed is "close to vesting."

 Id. at 1707. In other words, "because age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to say that a decision based on years of service is necessarily 'age-based.'" Id.

 If, however, an employer targeted for termination employees with a particular pension status based on the assumption that these employees would likely be older, then the employer would have discriminated based on age. Id. This is because the employer was actually motivated by age and merely used pension status as a proxy for age. Id.

 Thus, if, in conducting Operation Turnabout, Roche terminated a member of the plaintiff class because of that plaintiff's age (and the plaintiff was at least 40 years old, see 29 U.S.C. § 631(a)), then Roche would have engaged in disparate treatment based on age against that plaintiff. At issue on this motion, however, is whether a reasonable jury could find that Roche engaged in a "pattern or practice" of such disparate treatment.

 Pattern or Practice : In order to establish that Roche engaged in a pattern or practice of discrimination, plaintiffs must establish

 
more than the mere occurrence of isolated or "accidental" or sporadic discriminatory acts. [They must] establish by a preponderance of the evidence that [age] discrimination was the company's standard operating procedure--the regular rather than the unusual practice.

 Teamsters, 431 U.S. at 336. Title VII's legislative history provides, in part, that

 
[a] pattern or practice would be present only where the denial of rights consists of something more than the isolated, sporadic incident, but is repeated, routine, or of a generalized nature. There would be a pattern or practice if, for example, a number of companies or persons in the same industry or line of businesses discriminated throughout all or a significant part of its system, or if a company repeatedly and regularly engaged in acts prohibited by the statute. The point is that single, insignificant, isolated acts of discrimination by a single business would not justify a finding of pattern or practice. . . .

 110 Cong. Rec. 14270 (1964) (remarks of Senator Humphrey) (quoted in Teamsters, 431 U.S. at 336 n.16). In short, a company engages in a pattern or practice of discrimination when it systematically engages in intentional discrimination against a protected group, or in other words, when it maintains a regular, corporate policy of purposeful discrimination in some aspect of its employment practices. See Teamsters, 431 U.S. at 361-62. See also Cooper, 467 U.S. at 877-78 (referring to pattern or practice as "a companywide policy, or even a consistent practice within a given department"); King, 960 F.2d at 623 (stating that "plaintiffs in a pattern-or-practice . . . class discrimination claim have the burden of showing that the unlawful discrimination was the employer's regular policy" (quoting EEOC v. Sears, Roebuck & Co., 839 F.2d 302, 354-55 (7th Cir. 1988)); Dillon v. Coles, 746 F.2d 998, 1004 (3d Cir. 1984) (stating that "the class representative's prime facie case must establish that discrimination was the employer's standard practice"); Segar v. Smith, 238 U.S. App. D.C. 103, 738 F.2d 1249, 1274 (D.C. Cir. 1984) (stating that "[a] pattern or practice case challenges a host of employment decisions over time; in effect, it challenges an employment system"), cert. denied, 471 U.S. 1115 (1985).

 That "pattern or practice" means a consistent policy of purposeful discrimination is further supported by the consequences of a finding that a defendant engaged in a pattern or practice of discrimination.

 Once the court finds that the defendant engaged in a pattern or practice of discrimination, then this finding, without any further evidence, justifies an award of prospective relief. Teamsters, 431 U.S. at 361.

 
Such 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.

 Id. The particular prospective relief ordered in a case should be designed to ensure that employers found to have engaged in a pattern or practice of discrimination "eliminate their discriminatory practices and the effects therefrom." See id. at 361 n.47. Thus, a finding of a pattern or practice establishes liability as to the class and justifies injunctive relief to eliminate the policy that was harming the class. See Price Waterhouse v. Hopkins, 490 U.S. 228, 266, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989) (O'Connor, J., concurring); Dillon, 746 F.2d at 1004. The provision for this type of relief clearly indicates that a "pattern or practice" is something more than random or sporadic discriminatory acts. Rather, a "pattern or practice" is a consistent policy of purposeful discrimination, the elimination of which requires the use of the court's broad equitable powers. See Teamsters, 431 U.S. at 361 n.47. In addition, such a policy of discrimination may be demonstrated by showing either a consistent history of discriminatory decisionmaking in an employer's employment practices or by showing that the employer has an openly declared discriminatory policy. See, e.g., United States v. Bd. of Educ. of School Dist. of Phila., 911 F.2d 882, 892-93 3d Cir. 1990) (stating in the context of a Title VII pattern-or-practice claim that "where the allegedly discriminatory policy is openly declared . . . then proof that the policy was actually being followed consistently is not necessary in order to obtain an injunction against subsequent implementation" and therefore in this situation a plaintiff need not demonstrate "a consistent history of violation of Title VII" in order to prove a pattern or practice) [hereinafter "Phila. Bd. of Ed. "]; 110 Cong.Rec. 14239 (1964) ("It would be clear that an establishment or employer that consistently or avowedly denies rights under [Title II and Title VII] is engaged in a "pattern or practice of resistance.'") (remarks of Senator Humphrey) (cited in Teamsters, 431 U.S. at 336 n.16).

 Also probative of the meaning of "pattern or practice" is the effect of a finding that the employer engaged in a pattern or practice of discrimination on the individual class members' claims for relief. If individual relief for the victims of the discriminatory policy is sought in addition to classwide injunctive relief, "then the district court must usually conduct additional proceedings after the liability phase of the trial to determine the scope of individual relief." Teamsters, 431 U.S. at 361. See also Price Waterhouse, 490 U.S. at 277 (O'Connor, J., concurring) (stating that the finding that discrimination was the employer's "standard practice" establishes liability to the class, "but as to the individual members of the class the liability phase of the litigation is not complete"); Dillon, 746 F.2d at 1004 (same). At these additional proceedings, the individual class members can build on the finding that the defendant engaged in a pattern or practice of discrimination. More specifically, "the proof of pattern or practice supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in support of that policy." Teamsters, 431 U.S. at 362. The individual class member need only show that he or She was "a potential victim of the proved discrimination." Id. For example, if the class demonstrated that the employer engaged in a pattern or practice of discrimination in hiring persons for a certain position, then the class member need only demonstrate that he or she unsuccessfully applied for that position, and therefore, he or she was a potential victim of the discriminatory policy. *fn6" See id. Significantly, the employer thereafter has the burden of demonstrating that the potential victim of the discriminatory policy was denied an employment opportunity for lawful reasons. Id. In other words, once the class proves the existence of a discriminatory policy and once an individual class member demonstrates that he or she was a potential victim of that policy, then there is a rebuttable presumption that the employer discriminated against the class member. Id. at 359 n.45.

 The burden of proof shifts to the employer in this situation because although the finding of a discriminatory policy does "not conclusively demonstrate that all of the employer's decisions were part of the proved discriminatory pattern or practice, it [does] create a greater likelihood that any single decision was a component of the overall pattern. " Id. (emphasis added). Thus, the presumption shifting the burden to the employer is based on a "judicial evaluation" of evidentiary probabilities. See Teamsters, 431 U.S. at 359 n.47. Accord Price Waterhouse, 490 U.S. at 266-67 (O'Connor, J., concurring). "Because the class has already demonstrated that, as a rule, illegitimate factors were considered in the employer's decisions," then it is more likely that an illegitimate criterion was a factor in the individual employment decision, and, therefore, the burden shifts to the employer to prove that the legitimacy of its decisions. See Price Waterhouse, 490 U.S. at 266-67 (O'Connor, J., concurring) (emphasis added). *fn7"

 B. Injunctive Relief, "One-Shot" Event, and Disparate Impact

 As stated above, Roche makes alternative arguments in support of the proposition that, even assuming that plaintiffs' allegations regarding the manner in which Operation Turnabout was conducted are true, these allegations are insufficient to bring this case within the parameters of a pattern-or-practice case.

 Initially, it is important to set forth plaintiffs' theory of the case. In order to effectuate Operation Turnabout, Roche created a document entitled "Summary of Staff Reduction Guidelines" that contained a section called "Selection Guidelines for Staff Reduction Project" [hereinafter the "Guidelines"]. See Miller Aff. Ex. 7. Plaintiffs base both their pattern-or-practice claim and their disparate impact claim on the Guidelines. Specifically, with respect to the disparate impact claim, plaintiffs state that certain policies delineated in the Guidelines "allowed uncontrolled subjective decisionmaking, and because such subjective decisionmaking permits and/or encourages decisionmakers to allow their individual biases to enter into the decisionmaking process, [these policies] could cause a disparate impact on older workers." See Flamm Aff. Ex. 2 (Plaintiffs' Response to Interrogatory No. 1). With respect to plaintiffs' pattern-or-practice claim, plaintiffs state that "the same policy that resulted in a disparate impact on older Roche employees also led to intentional discrimination against older employees" and "Roche executives knew that age bias existed and that uncontrolled decisionmaking would, most likely, result in disproportionate terminations of older employees." See id. (Plaintiffs' Response to Interrogatory No. 11(a)).

 In other words, plaintiffs' theory is that Roche gave the line managers who performed the rankings, and thus made the actual termination decisions, complete discretion, see Plaintiffs' Supplementation Br. at 7 ("Each step along the way furthered Roche's goal of permitting untrammeled discretion to rule in the implementation of Operation Turnabout."), and that Roche intended and/or knew that this discretion would result in both conscious and unconscious discrimination against older workers because there was "pre-existing age bias" among Roche's managers, see, e.g., id. at 4-5 (stating that Roche's "ad hoc employee evaluation system inevitably exploited the conscious and unconscious exercise of age bias among those managers making selection decisions" and that "Operation Turnabout's selection policies in fact provided the fertile ground needed for the exercise of pre-existing age bias among Roche's decision-making managers").

 The allegation that Roche intended and/or knew that giving the line managers discretion would result in intentional discrimination is the allegation that distinguishes plaintiffs' pattern-or-practice claim from their disparate impact claim. However, there is insufficient evidence in the record to support a finding that Roche in fact intended and/or knew that uncontrolled subjective decisionmaking would result in disproportionate terminations of older workers. As the Special Master noted, "there is . . . little evidence that Roche systematically violated the ADEA before the date of the RIF or immediately thereafter." Pattern-or-Practice Opinion at 2. *fn8" Because there is insufficient evidence to support a finding that Roche systematically violated the ADEA prior to or after Operation Turnabout, there is no circumstantial basis for finding that Roche knew that, if it gave the managers a great deal of discretion in deciding who would be terminated, the managers inevitably would exercise this discretion in a discriminatory fashion.

 Also, there is no evidence, or even an allegation, that Roche used the Guidelines either before or after Operation Turnabout. See Plaintiffs' Supplementation Br. at 4 ("Roche's ad hoc employee evaluation system, devised and first used for this RIF, became established as the "standard operating procedure" for Operation Turnabout, and that such standard operating procedure both promoted and depended on the anticipated application by Roche managers of age stereotyped thinking to the selection process." (emphasis added)).

 Thus, plaintiffs' pattern-or-practice claim is essentially that Roche adopted a procedure, solely for use in Operation Turnabout, of giving its managers a great deal of discretion in determining who would be terminated, and this system happened to result in both conscious and unconscious discrimination against Roche's older workers.

 As stated above, Roche argues, in effect, that this claim does not fall within the parameters of a pattern-or-practice claim. For a number of reasons, I agree.

 First, not all class actions alleging employment discrimination are pattern-or-practice cases. Teamsters, 431 U.S. at 360. Rather, a class action is a pattern-or-practice case only when the plaintiffs claim that "unlawful discrimination has been a regular procedure or policy followed by an employer or a group of employers." Id. (emphasis added). In other words, in order to prove a pattern or practice of discrimination, plaintiffs must prove that unlawful discrimination is "the company's standard operating procedure," Teamsters, 431 U.S. at 336, and such standard operating procedure can be proven either by demonstrating a consistent history of discriminatory decisionmaking or by demonstrating that discrimination was the declared policy of the employer. See, e.g., Phila. Bd. of Ed., 911 F.2d at 892-93; 110 Cong.Rec. 14239 (1964).

 The defect with plaintiffs' pattern-or-practice claim in this case is that plaintiffs have not asserted that unlawful discrimination was Roche's standard operating procedure. Rather, plaintiffs assert that "Roche's ad hoc employee evaluation system" was the standard operating procedure and that this procedure happened to result in both conscious and unconscious age discrimination. See, e.g., Plaintiffs' Supplementation Br. at 4 ("Roche's ad hoc employee evaluation system, devised and first used for this RIF, became established as the "standard operating procedure" for Operation Turnabout, and that such standard operating procedure both promoted and depended on the anticipated application by Roche managers of age stereotyped thinking to the selection process."); id. at 4-5 (stating that Roche's "ad hoc employee evaluation system . . . inevitably exploited the conscious and unconscious exercise of age bias among those managers making selection decisions"). This is a disparate impact claim and not a pattern-or-practice claim.

 Disparate impact claims "involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Teamsters 431 U.S. at 335 n.15 (citations omitted). Proof of discriminatory motive is not required under a disparate impact theory. Id. The Supreme Court has held that disparate impact claims can be brought, at least pursuant to Title VII, to challenge subjective or discretionary employment practices such as those being challenged by the plaintiffs in this case. See Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 101 L. Ed. 2d 827, 108 S. Ct. 2777 (1988). *fn9" Furthermore, unlike disparate treatment analysis (of which pattern-or-practice analysis is a species, see Teamsters, 431 U.S. at 335 n.15), disparate impact analysis addresses the effects of unconscious discrimination in addition to conscious or intentional discrimination. See Watson, 487 U.S. at 990 (stating that one of the reasons that disparate impact analysis should be applicable to subjective employment criteria as well as objective criteria is that "even if one assumed that any such discrimination can be adequately policed through disparate treatment analysis, the problem of subconscious stereotypes and prejudices would remain"). Thus, plaintiffs' claim that the use of subjective decisionmaking procedures was Roche's standard operating procedure during Operation Turnabout, and that such standard operating procedure happened to result in both conscious and unconscious discrimination is a disparate impact claim and not a pattern-or-practice claim.

 This conclusion is bolstered by the fact that a number of the cases relied upon by plaintiffs in support of their assertion that "the instant case is premised on substantial precedent derived from numerous Title VII cases involving undisciplined and ill-defined selection criteria coupled with uncontrolled decision-making by individual managers," see Plaintiffs' Supplementation Br. at 37, are disparate impact cases that do not discuss pattern-or-practice issues. See Crawford v. Western Electric Company, Inc., 745 F.2d 1373, 1384-86 (11th Cir. 1984) (affirming district court's finding that employer's review system that was based in part on wholly subjective evaluations by white foremen of black employees' "skill" had a disparate impact on black employees); Robinson v. Union Carbide Corp., 538 F.2d 652 (5th Cir. 1976) (holding, among other things, that promotion system for salaried employees that relied on supervisor's subjective opinion concerning job candidates' "adaptability," "bearing, demeanor, manner," "verbal expression," "appearance," "maturity," "drive," and "social behavior" violated Title VII because "such high-level subjectivity subjects the ultimate promotion decision to the intolerable occurrence of conscious or unconscious prejudice"; although the court did not specifically mention the term "disparate impact", its based its holding on the seminal Supreme Court case on disparate impact, Griggs v. Duke Power Co., 401 U.S. 424, 431, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971), wherein the Supreme Court stated that Title VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation"), aff'd in part, rev'd in part on other grounds and remanded on reh'g, 544 F.2d 1258 (5th Cir.), cert. denied, 434 U.S. 822 (1977); Wade v. Mississippi Cooperative Extension Service, 528 F.2d 508, 518 (5th Cir. 1976) (holding, based on Griggs, that evaluation form used for evaluating professional workers violated Title VII where "the questions on the evaluation form were in part subjective and vulnerable to either conscious or unconscious discrimination by the evaluating supervisors," "the evaluation scores themselves were not consistently used as a basis for . . . promotion," and "the defendants wholly failed to make a showing that the test was substantially related to the particular job of the individual being evaluated"); Rowe v. General Motors Corporation, 457 F.2d 348, 358-59 (5th Cir. 1972) (holding, relying on Griggs, that procedure for promotion from hourly job to salaried job violated Title VII where (1) the foreman's recommendation was the single most important factor in the promotion process, but the foreman was not given written instructions pertaining to the qualifications necessary for promotion; (2) the standards which were determined to be controlling were "vague and subjective;" (3) hourly employees were not notified of promotion opportunities or of the qualifications necessary to get the job; and (4) there were no safeguards in the procedure to avert discriminatory practices).

 Other cases relied upon by the plaintiffs merely stand for the propositions that plaintiffs "may challenge employment actions under both disparate impact and disparate treatment theories in the same case and that statistical evidence of a disparate impact is also relevant evidence regarding whether an employer engaged in intentional discrimination. See Mozee v. American Commercial Service Company, 940 F.2d 1036, 1042 (7th Cir. 1991); Green v. USX Corporation, 896 F.2d 801, 807 (3d Cir.), cert. denied, 498 U.S. 814 (1990). However, this does not mean that all disparate impact claims are also ipso facto pattern-or-practice claims. Rather, a pattern-or-practice claim exists only when the plaintiffs claim that "unlawful discrimination has been a regular procedure or policy followed by an employer or a group of employers." Teamsters, 431 U.S. at 360 (emphasis added). For example, in Mozee, in addition to their claim that the defendant's subjective promotion and discipline system had a disparate impact on black employees, plaintiffs also specifically claimed that the defendant pursued "a general policy of [intentional] discrimination," i.e., a pattern or practice of discrimination. Mozee, 940 F.2d at 1042. In Green, in addition to their claim that the defendant's multi-component hiring system that utilized subjective criteria had a disparate impart on black applicants, see Green, 896 F.2d at 803, the plaintiffs also asserted a disparate treatment claim that was "based on the theory that [defendant's] use of relevant labor market data, instead of applicant flow data, to set its minority hiring goals constituted the intentional setting of a discriminatory quota to limit black hires." Green v. United States Steel Corp., 570 F. Supp. 254, 277 (E.D. Pa. 1983). Unlike the plaintiffs in Mozee and Green, the plaintiffs in this case claim only that the use of subjective decisionmaking procedures was Roche's standard operating procedure during Operation Turnabout. No where is it alleged the Roche's standard operating procedure was intentional discrimination. Thus, plaintiffs' are only asserting a disparate impact claim and not a pattern-or-practice claim.

 Furthermore, the consequences of finding that plaintiffs' claim fits within the pattern-or-practice framework would be that anytime a company gives managers discretion to make employment decisions that company potentially engages in a pattern or practice of discrimination. This is because anytime managers are given discretion they have the opportunity to exercise that discretion in a discriminatory manner. Thus, some may discriminate, while others may not. However, concluding that this situation, without more, is a pattern or practice would bring within the definition of a pattern or practice employment practices that were not intended to be there. This is because a decision by a company to give managers the discretion to make employment decisions, and the subsequent exercise of that discretion by some managers in a discriminatory manner, is not tantamount to a decision by a company to pursue a systematic, companywide policy of intentional discrimination, i.e., a pattern or practice of discrimination. Rather, the exercise by some managers of their discretion to discriminate would constitute "the mere occurrence of isolated or 'accidental' of sporadic discriminatory acts," which is not a pattern or practice of discrimination. Teamsters, 431 U.S. at 336.

 I note that if a company gave managers the discretion to make termination decisions only as a ruse to conceal a systematic, discriminatory policy, then that company could be found to have engaged in a pattern or practice of discrimination. However, there is no such allegation in this case. Plaintiffs simply claim that "Roche's ad hoc employee evaluation system" was the standard operating procedure and that this procedure happened to result in both conscious and unconscious age discrimination. Therefore, accepting this claim as a pattern-or-practice claim would broaden the meaning of pattern or practice beyond that explained by the Supreme Court in Teamsters and the subsequent caselaw.

 Another reason that plaintiffs' claim does not fall within the framework of a pattern-or-practice case is that the employment practice which plaintiffs assert was Roche's standard operating procedure was used only once, i.e., the Guidelines were used only during Operation Turnabout. Thus, because the Guidelines were used only during Operation Turnabout, and there is no evidence in the record to support a finding that Roche may use them in the future, there does not appear to be any discriminatory policy that the court should exercise its broad equitable powers to eliminate. This is because the "discriminatory" policy, i.e., the Guidelines, is no longer in effect and was in effect only once. Thus, because Operation Turnabout was a one-shot event, there is no basis to award class-wide prospective injunctive relief--the main reason for bringing a pattern-or-practice claim. Therefore, Roche's arguments, that plaintiffs' claim must be dismissed because pattern-or-practice claims are only appropriate where the class plaintiffs seek to enjoin the defendant from engaging in existing or threatened discriminatory behavior and because a "one-shot" event cannot constitute a pattern or practice of discrimination, are also persuasive. This is another reason why this case does not fall into a classical pattern-or-practice framework.

 In summary, plaintiffs allege that the ad hoc employee evaluation system was Roche's standard operating procedure, that it was devised and first used for Operation Turnabout, and that it afforded managers the opportunity to act on their own individual biases. This is not a pattern-or-practice claim because plaintiffs are not claiming that age discrimination was Roche's standard operating procedure, but rather are claiming that subjective decisionmaking was Roche's standard operating procedure and that such procedure happened to result in discrimination. Furthermore, because Operation Turnabout was a one-shot event, there is no basis to award class-wide prospective injunctive relief--the main reason for bringing a pattern-or-practice claim.

 For these reasons, I find that plaintiffs' claim is not within the parameters of a pattern-or-practice claim. Rather, plaintiffs are attempting to re-characterize a disparate impact claim as a pattern-or-practice claim. Therefore, I find that, as a matter of law, plaintiffs have not asserted a viable pattern-or-practice claim and ...


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