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April 26, 1994

IN RE: WESTERN DISTRICT XEROX LITIGATION; This document applies to all cases.

The opinion of the court was delivered by: LARIMER

Between June 1989 to April 1990, twenty-three former employees *fn1" of Xerox Corporation ("Xerox") filed twenty-three separate actions, in the Western District of New York, alleging that they were each terminated or forced to retire from Xerox during 1981-82, on account of their age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.

 The alleged discriminatory acts occurred during 1981-82 when Xerox reduced its work force by 18,000 employees.

 All of the plaintiffs, in their separate complaints, have alleged that Xerox took the adverse job actions as part of a "pattern and practice" of age discrimination.

 A Case Management Order was entered August 15, 1991, which created a Master Docket for the twenty-four cases filed against Xerox at that time. This order simply provided procedures for filing documents and orders relating to all of the cases with the direction that orders and documents affecting all of the cases be filed and docketed with the caption "In Re: Western District Xerox Litigation, 91-MC-138L." By dint of that order, the cases were treated as consolidated for purposes of case management and discovery, in part because plaintiffs were all represented by the same law firm, and to properly manage discovery. That order did not purport to consolidate the cases for any other purpose or for trial.

 Xerox has moved for summary judgment in each of the cases and, in the alternative, for in limine rulings with respect to certain issues. Some grounds for summary judgment raised by Xerox affect all of the plaintiffs as a group; others relate only to individual plaintiffs.

 This decision will deal with some but not all of the issues raised in Xerox's summary judgment motions. This decision will deal with the following issues:

 1. Whether Xerox is entitled to summary judgment on plaintiffs' claim that Xerox engaged in a pattern and practice of age discrimination affecting all the plaintiffs; and

 2. Whether plaintiffs' actions should be deemed commenced within two years after the alleged discriminatory acts or within three years, the latter date requiring proof of willfulness under 29 U.S.C. § 626(e)(1).

 Procedural History: Lusardi Action

 Plaintiffs' claims have a lengthy, complex procedural history involving several federal courts. This background is of more than mere historical interest; it directly affects some of the issues between the parties on this summary judgment motion.

 In 1983, Jules Lusardi and a group of former Xerox employees, commenced a class action (hereinafter "Lusardi action") in the District Court of New Jersey alleging, in part, that they and others similarly situated, were terminated as a result of "age based corporate policies and practices . . . designed . . . to terminate or force into retirement a high percentage of persons 40 or over. . ." Lusardi v. Xerox, 118 F.R.D. 351, 353 n.4 (D.N.J. 1987).

 In 1984, the case was conditionally certified as an "opt in" class action under the ADEA. All of the twenty-three named plaintiffs in this action in the Western District of New York, together with about 1300 others, opted in to the class.

 For about two years, from 1984 through 1986, the parties engaged in extensive discovery in the Lusardi action, pursuant to a discovery plan. According to that discovery plan, discovery was conducted relative to the thirteen named plaintiffs in the Lusardi action and fifty-one randomly selected class members which purported to represent a "microcosm" of the entire class. Lusardi, 118 F.R.D. at 354.

 During this discovery,

 Id., 118 F.R.D. at 354.

 After these extensive discovery proceedings, on November 5, 1987, the district court (Lechner, J.) decertified the class in a lengthy opinion (118 F.R.D. 351). Judge Lechner determined, among other things, that the class representatives and other members of the class were not similarly situated and, for the many reasons that he discussed in his decision, Judge Lechner decertified the class. In so ruling, Judge Lechner noted:

The described downsizing of the Xerox work force was implemented and managed at the local level. The local management assessed its particular work force needs, consistent with corporate policy. Accordingly, a reduction differed not only from organization to organization but also from manager to manager, as well as from RIF to RIF. It appears there was never a corporate-wide VRIF or IRIF. However, "there were at least 40 separate IRIF's and more than 25 separate VRIF's during the class period conducted at various times by particular Xerox organizations.

 Id., 118 F.R.D. at 36. *fn2"

 On remand from a mandamus petition to the Third Circuit, Lusardi v. Lechner, 855 F.2d 1062 (3d Cir. 1988), Judge Lechner, on reconsideration, stated that he was satisfied this case cannot continue in a class action status." Lusardi v. Xerox Corp., 122 F.R.D. 463, 465 (D.N.J. 1988).

 Judge Lechner stated the following:

The opt-in plaintiffs present what amounts to a series of more than thirteen hundred individual cases. The members of the proposed class come from different departments, groups, organizations, sub-organizations, units and local offices within the Xerox organization. The opt-in plaintiffs perform different jobs at different geographic locations and were subject to different job actions concerning reductions in work force which occurred at various times as a result of various decisions by different supervisors made on a decentralized employee-by-employee basis. This case should not continue in a class status.

 Id., 122 F.R.D. at 465.

 A final order was entered on November 10, 1988, decertifying the action as a class action.

 After the decertification of the class action, each of the twenty-three plaintiffs, from June 1989 to April 1990, commenced an individual action in the Western District of New York against Xerox alleging that they were each terminated or forced to retire on account of a corporate-wide pattern and practice of age discrimination at Xerox.

 I. Pattern Or Practice of Discrimination

 Plaintiffs propose that all of these cases be consolidated for a single trial on the issue of whether Xerox engaged in a pattern or practice of age discrimination when Xerox reduced its workforce by 18,000 employees in 1981-82. If liability is found at that stage, plaintiffs suggest that separate trials then be held to determine damages.

 This approach generally follows that described in Teamsters v. United States, 431 U.S. 324, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977). The Teamsters model differs from the typical disparate treatment claim in that, at the prima facie stage, plaintiffs need not offer evidence that each of them was discriminated against. Rather, plaintiffs must show that discrimination of the type alleged was the defendant's "standard operating procedure . . ." Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876, 81 L. Ed. 2d 718, 104 S. Ct. 2794 (1984). Such a showing, if made, creates "a presumption that the individual class members have been discriminated against . . ." Id. at 875. The case then moves on to a second, "remedial" stage at which defendant bears the burden of demonstrating that the individual plaintiffs were not victims of the discriminatory practice. Teamsters, 431 U.S. at 362. The Teamsters approach thus differs from the traditional McDonnell Douglas3 analysis in that the burden of persuasion can shift from plaintiffs to defendant.

 For the reasons that follow, Xerox's motion for summary judgment is granted on the claim that Xerox engaged in a pattern and practice of discrimination. There is an insufficient legal and factual basis to submit this theory of liability to the jury.

 Law of the Case: Lusardi Action

 First of all, a strong argument can be made that this issue has already been decided between these parties in the prior class action proceedings in Lusardi.

 All twenty-three plaintiffs were members of the Lusardi class action and, therefore, they are all bound by the judgment and all orders entered in that case. Cooper, 467 U.S. at 880; Sperling v. Hoffmann-La Roche, 145 F.R.D. 357, 364 (D.N.J. 1992); see also Fed. R. Civ. P. 23(c)(2)((a).

 "'As most commonly defined, the doctrine [of law of the case] posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 816, 100 L. Ed. 2d 811, 108 S. Ct. 2166 (1988) (quoting Arizona v. California, 460 U.S. 605, 618, 75 L. Ed. 2d 318, 103 S. Ct. 1382 (1983)).

 It is clear from Judge Lechner's two decisions in Lusardi, (118 F.R.D. 351 and 122 F.R.D. 463) that he believed and found that the representative plaintiffs in the class action had failed to establish any corporate-wide policy or practice of age discrimination.

 In his initial decision decertifying the class, he held that plaintiffs were not similarly situated in part because "plaintiffs, after extensive discovery, [had] not uncovered any policy or practice of age discrimination at Xerox." Lusardi, 118 F.R.D. at 359. Judge Lechner discussed, at length, the many reasons why the plaintiffs, and others, were not similarly situated, requiring decertification of the class. See Lusardi, 122 F.R.D. at 466.

 Judge Lechner found that there was not even a basis for the creation of subclasses because "there is not commonality among the people who were subject to more than 60-five separate reductions in force, virtually all of which occurred at separate points in time. In the absence of one corporate-wide reduction in force, about all that the members of the proposed class have in common is their termination and age within the protected range." Lusardi, 122 F.R.D. at 466.

 Judge Lechner discussed the Teamsters case at length and found its analysis to be inappropriate and determined that the case would not proceed as a class action under principles established in that case.

 The clear import of Judge Lechner's two decisions is that if the plaintiffs had established a corporate-wide pattern and practice of discrimination, then there might have been a sufficient basis to allow the case to proceed as a class action.

 In essence, this is the third time that plaintiffs have attempted to convince a federal court that there are sufficient facts and circumstances to establish a corporate-wide pattern and practice of discrimination. Judge Lechner dealt with the issue in both of his two decisions. Although it is true that the holding of Judge Lechner's decisions dealt with the decertification of the class, the underlying factual basis for that holding was, in part, that plaintiffs had failed to establish, after extensive discovery, the existence of any corporate-wide pattern and practice of age discrimination. Of necessity, it appears that Judge Lechner decided that there was no corporate-wide pattern of discrimination. The law-of-the-case doctrine applies to issues that have been decided expressly or by necessary implication. Fogel v. Chestnutt, 668 F.2d 100, 108 (2d Cir. 1981), cert. denied, 459 U.S. 828 (1982); Doe v. New York City Dep't of Social Services, 709 F.2d 782, 788 (2d Cir.), cert. denied, 464 U.S. 864 (1983); Cohen ...

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