FILED

United States Court of Appeals

Tenth Circuit

August 26, 2009

Elisabeth A. Shumaker

Clerk of Court

 PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LARRY THOMPSON; JOEL WHITE;

LINDA SLABAUGH; SUSAN

ROGERS; ED RISENHOOVER; JOE

PRIVETTE; JAMES LITTLE; ALAN

LEWIS; DARRELL KELLEY; FORD

HENDERSHOT; STAN HARRIS;

HAROLD GRIFFIN; ALAN GEBERT;

TONY FENNELL; WILLIAM

COOPER; GERALD ADAMS;

ROBERT TIMMER; and TED

KRUCHOWSKI,

 Plaintiffs-Appellees,

 

v. No. 07-7090

THE WEYERHAEUSER COMPANY,

 Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

 EASTERN DISTRICT OF OKLAHOMA 

(D.C. Nos. CIV-03-649, CIV-05-499-JHP)

Kristen L. Brightmire, Eldridge Cooper Steichen & Leach, PLLC, (William S.

Leach and Michael F. Smith with her on the briefs), Tulsa, Oklahoma, for the

Defendant-Appellant.

J. Vince Hightower, Tulsa, Oklahoma (Jim T. Priest, Whitten, Burrage, Priest,

Fulmer, Anderson & Eisel, Oklahoma City, Oklahoma with him on the brief), for

the Plaintiffs-Appellees. 
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Before HENRY, Chief Judge, and MURPHY and TYMKOVICH, Circuit Judges.

HENRY, Chief Judge.

After losing their jobs at the Weyerhaeuser Company’s Valliant, Oklahoma

containerboard plant as part of a reduction in force, the plaintiffs filed this

wrongful termination action against Weyerhaeuser, alleging violations of the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-34, and state law.

In pretrial briefing, the plaintiffs requested that the court apply the pattern-orpractice framework adopted by the Supreme Court in International Brotherhood of

Teamsters v. United States, 431 U.S. 324 (1977). Weyerhaeuser moved to strike

the plaintiffs’ request, arguing that the pattern-or-practice framework should be

employed only in employment discrimination cases filed under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. 

The district court denied Weyerhaeuser’s motion, reasoning that this court’s

decision in Thiessen v. General Electric Capital Corp., 267 F.3d 1095 (10th Cir.

2001), establishes that the pattern-or-practice framework may be applied in ADEA

cases. The court certified the issue for interlocutory appeal. See 28 U.S.C. §

1292(b).
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Weyerhaeuser now re-urges its argument that the pattern or practice

framework should not be applied. It further contends that our decision in Thiessen

did not reach that question. 

We are not persuaded. Thiessen holds that when a plaintiff alleges that age

discrimination was an employer’s “standard operating procedure,” Teamsters, 431

U.S. at 336, and presents sufficient evidence to support that allegation, the district

court must apply the pattern-or-practice framework. 267 F.3d at 1108.

Accordingly, exercising our discretion under 28 U.S.C. § 1292(b), we affirm the

district court’s decision denying Weyerhaeuser’s motion to strike and remand the

case for further proceedings consistent with this opinion. 

I. BACKGROUND

In 2002, Weyerhaeuser’s Valliant, Oklahoma plant implemented a reduction

in force. As a result, sixteen of the plaintiffs were discharged. The seventeenth

plaintiff, Larry Thompson, was discharged in 2003. Each of the plaintiffs was

over forty years of age at the time of discharge.

The plaintiffs then filed this wrongful discharge action in the Eastern

District of Oklahoma, alleging violations of the ADEA and state law. The district

court granted summary judgment to the defendants on the grounds that the

plaintiffs had signed a waiver of their right to file an ADEA claim in order to

obtain a severance package. However, in a prior appeal, this court held that the
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waivers were not valid, reversed the grant of summary judgment, and remanded

the case for further proceedings. See Kruchowski v. Weyerhaeuser Co., 446 F.3d

1090 (10th Cir. 2006).

After remand, as we have noted, the district court denied Weyerhaeuser’s

request to strike the pattern-or-practice theory of discrimination advanced by the

plaintiffs but certified the ruling for interlocutory appeal.

II. DISCUSSION

Weyerhaeuser now argues that, in contrast to Title VII, the ADEA does not

authorize a court to apply the pattern-or-practice framework for assessing claims

of age discrimination. Weyerhaeuser acknowledges that this court’s decisions in

Thiessen and EEOC v. Sandia Corp., 639 F.2d 600 (10th Cir. 1980), have applied

the pattern-or-practice framework to ADEA claims. Nevertheless, Weyerhaeuser

maintains, those cases did not consider the arguments it now raises and therefore

are not controlling. These contentions raise legal questions that we examine de

novo. See WWC Holding Co., Inc. v. Sopkin, 488 F.3d 1262, 1276 n.10 (10th Cir.

2007).

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

to ADEA cases.

The federal statutes barring discrimination in employment contain only a

brief reference to the pattern-or-practice framework at issue here. A section of
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Title VII authorizes the Attorney General to file a civil action against “any person

or group of persons” whom he or she has reasonable cause to believe “is engaged

in a pattern or practice of resistance to the full enjoyment of any of the rights

secured by this subchapter, and that the pattern or practice is of such a nature and

is intended to deny the full exercise of the rights herein described.” 42 U.S.C. §

2000e-6(a) (emphasis added). 

Unlike Title VII, the ADEA contains no express reference to pattern-orpractice claims. The ADEA does adopt the opt-in class mechanism of the Fair

Labor Standards Act, which authorizes class actions when the complaining

employees are “similarly-situated.” See 29 U.S.C. § 626(b) (providing that the

provisions of the ADEA “shall be enforced in accordance with the powers,

remedies, and procedures provided in [specified sections of the Fair Labor

Standards Act,]” including the Fair Labor Standards Act provision regarding class

actions, 29 U.S.C. § 216(b)). However, that class action statute does not use the

term “pattern-or-practice.” See generally Thiessen, 267 F.3d at 1102-08

(discussing ADEA class actions). 

In the absence of specific statutory provisions, the details of the pattern-orpractice framework have developed in Supreme Court decisions in which the

plaintiffs alleged that employers had violated Title VII by engaging in “a pattern

of discriminatory decisionmaking.” See Cooper v. Fed. Reserve Bank of

Richmond, 467 U.S. 867, 876 (1984); Teamsters, 431 U.S. at 357-62; Franks v.
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Bowman Transportation Co., 424 U.S. 747, 772-73 (1976). In those cases, the

Court has concluded that trial proceedings involving pattern-or-practice claims

should occur in a series of specific stages. It has also allocated the burdens of

proof on various issues in a manner that “differ[s] dramatically from a case

involving only individual claims of discrimination.” Thiessen, 267 F.3d at 1106. 

(citing Teamsters, 431 U.S. at 357-62). The Court has applied this framework

both in cases filed by the government, see Teamsters, 431 U.S. at 328, and in cases

filed by private parties, see Franks, 424 U.S. at 772. 

In a pattern-or-practice case, the Court concluded, the trier of fact should

first determine whether the allegedly discriminatory pattern or practice actually

existed. In contrast to cases alleging solely individual discrimination, the initial

focus of a pattern-or-practice case is upon the defendant employer’s “standard

operating procedure.” Teamsters, 431 U.S. at 336. The plaintiff must first show

that “unlawful discrimination has been a regular procedure or policy followed by

an employer or a group of employers.” Id. at 360. If the factfinder is not

persuaded, then the pattern-or-practice phase concludes. Thiessen, 267 F.3d at

1106 n.8 (adding that “[i]f the plaintiffs do not prevail during the first stage of a

pattern-or-practice trial, they are nevertheless entitled to proceed on their

individual claims of discrimination”). 

On the other hand, if the plaintiff proves that a discriminatory pattern or

practice existed, the court may award prospective equitable relief. See id. at 1106. 
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The Teamsters Court explained that “[s]uch relief might take the form of an

injunctive order against continuation of the discriminatory practice, an order that

the employer keep records of its future employment decisions and file periodic

reports with the court, or any other order necessary to ensure the full enjoyment of

the rights protected by Title VII.” 431 U.S. at 361 (internal quotation marks

omitted).

After this initial phase of a pattern-or-practice case, the inquiry shifts. The

factfinder must proceed to determine whether “any particular employment

decision, during the period in which the discriminatory policy was in force, was

made in pursuit of that [pattern or practice].” Id. at 362. “Importantly, by having

prevailed in the first stage of trial, the individual plaintiffs reap a significant

advantage for purposes of the second stage: they are entitled to a presumption that

the employer has discriminated against them.” Thiessen, 267 F.3d at 1106. As a

result, at this stage, the defendant employer has the burden of persuading the trier

of fact that the employer did not unlawfully discriminate against the individual

plaintiff. That burden is justified because “the finding of a pattern or practice

changed the position of the employer to that of a proven wrongdoer.” Teamsters,

431 U.S. at 359 n.45. 

This circuit has applied the pattern-or-practice framework in ADEA actions. 

For example, in Thiessen, the plaintiffs had alleged that their employer had

adopted a “blocker policy” under which management “began referring to the older
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[executive] employees as ‘blockers,’ because in their view these employees were

‘blocking’ the advancement of younger, newly recruited employees,” and then

taking adverse employment actions against the older employees. 267 F.3d at 1100. 

According to the district court in Thiessen, “[The lead plaintiff, Mr. Thiessen] has

not simply averred the existence of a discriminatory 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 forward with direct evidence of an overall policy of purported age

discrimination.” Id. at 1101 (quoting Thiessen v. Gen. Elec. Capital Corp., 996 F.

Supp. 1071, 1083 (D. Kan. 1998)). Despite that evidence, the district court

subsequently concluded that the plaintiffs had failed to make “a significant

showing of a specific link between defendants’ alleged blocker policy and each of

the adverse employment actions at issue in this case.” Thiessen v. Gen. Elec.

Capital Corp, 13 F. Supp.2d 1131, 1137 (D. Kan. 1998) (internal quotation marks

omitted). As a result, the district court granted the defendant employer’s motion

to decertify the case as a class action. 

In ruling that the district court had erred in decertifying the class, we

explained that the plaintiffs were asserting “a pattern-or-practice claim modeled on

[Teamsters]” and that the district court had failed to recognize that the plaintiffs’

trial plan “was consistent with the framework outlined in Teamsters for pattern-orpractice claims.” Theisen, 267 F.3d at 1107. We held that “[w]hen an ADEA
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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

[Teamsters]. Id. at 1108. See also Sandia Corp., 639 F.2d at 623) (concluding

that the district court properly applied the pattern-or-practice framework in an

ADEA case). 

That holding is echoed by several of our sister circuits. See Hipp v. Liberty

Nat’l Life Ins. Co., 252 F.3d 1208, 1227 (11th Cir. 2001) (analyzing the plaintiffs’

evidence under the pattern-or-practice framework); King v. Gen. Elec. Co., 960

F.2d 617, 624 (7th Cir. 1992) (stating that the “ADEA has no parallel provision [to

Title VII’s 42 U.S.C. § 2000e-6(a)], but courts nevertheless have adopted the

pattern-or-practice terminology and the shifting burden of persuasion to ADEA

actions”); Haskell v. Kaman Corp., 743 F.2d 113. 119 (2d Cir. 1984) (“As in race

discrimination cases, a plaintiff [in an ADEA case] may through statistical

evidence establish a pattern or practice of discharging or failing to promote older

employees, from which an inference of age discrimination may be drawn.”); EEOC

v. W. Elec. Co., 713 F.2d 1011, 1016 (4th Cir. 1983) (applying the Teamsters

pattern-or-practice procedural framework to an ADEA claim); Marshall v. Sun Oil

Co., 605 F.2d 1331, 1336 n.2 (5th Cir. 1979) (same). 

Scholarly commentary is in accord. See 8 Lex K. Larson, EMPLOYMENT

DISCRIMINATION § 137.02, at 137-16 (2d ed. 2008) (“Although there is no ADEA
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counterpart to the ‘pattern or practice’ provision of Title VII, both the government

and private classes of plaintiffs have been permitted to bring what amounts to agebased pattern-or practice suits.”); 2 Howard C. Eglit, AGE DISCRIMINATION § 7:40,

at 7-387 to 7-388. (2d ed. 1994) (stating that “generally, the pattern or practice

method of proof is almost exclusively used in class actions” and that “[g]enerally,

ADEA courts have looked to cases decided under Title VII . . . for guidance and

they have embraced the pattern or practice precedents developed in the Title VII

context”). 

B. Thiessen is controlling.

Weyerhaeuser insists that Thiessen’s statements that the pattern-or-practice

framework applies to ADEA claims are merely dicta that we need not follow here. 

It invokes the principle that “a panel of this [c]ourt is bound by a holding of a

prior panel of this [c]ourt but is not bound by a prior panel’s dicta.” Bates v.

Dep’t of Corr., 81 F.3d 1008, 1011 (10th Cir. 1996); see also United Food &

Commercial Workers Union, Local 564 v. Albertson’s, Inc., 207 F.3d. 1193, 1199

(10th Cir. 2000) (“Questions which merely lurk in the record, neither brought to

the attention of the court nor ruled upon, are not to be considered as having been

so decided as to constitute precedents.”) (internal quotation marks omitted). 
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We disagree. Dicta are “‘statements and comments in an opinion

concerning some rule of law or legal proposition not necessarily involved nor

essential to determination of the case in hand.’” Rohrbaugh v. Celotex Corp.,

53 F.3d 1181, 1184 (10th Cir. 1995) (quoting Black’s Law Dictionary 454 (6th ed.

1990)); see also Michael Abramowicz and Maxwell Stearns, Defining Dicta, 57

Stan. L. Rev. 953, 1065 (2005) (concluding that “[a] holding consists of those

propositions along the chosen decisional path or paths of reasoning that (1) are

actually decided, (2) are based upon the facts of the case, and (3) lead to the

judgment. If not a holding, a proposition stated in a case counts as dicta.”). 

Under that definition, Thiessen’s statement that the pattern-or-practice framework

applies to ADEA claims is a holding, not a lurking proposition. 

In particular, that determination was “necessarily involved” and “essential

to the determination of the case in hand.” Rohrbaugh, 53 F.3d. at 1184 (quoting

Black’s Law Dictionary 454 (6th ed. 1990)). The Thiessen panel concluded that

the district court’s decertification of the plaintiff class constituted an abuse of

discretion because the plaintiffs were proceeding under a pattern or practice

framework. “Necessarily involved” and “essential to th[at] determination” is the

associated conclusion that the pattern-or-practice framework is proper in ADEA

cases. Id.
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Moreover, our review of the parties’ briefs in Thiessen indicates that the

application of the pattern-or-practice framework to ADEA claims was specifically

addressed there. The Thiessen plaintiffs urged the application of the Teamsters

patttern-or-practice framework, see Aplt’s Br. at 57, Reply Br. at 33, Thiessen

(No. 98-3203), while the defendant employer argued that the application of that

framework would violate its due process rights, see Aple’s Br. at 33-34, Thiessen

(No. 98-3203) (contending that “the bifurcated trial scheme contemplated by . . .

Teamsters is constitutionally questionable in the context of a jury trial”).

Weyerhaeuser observes that neither Thiessen nor Sandia Corp. addressed

many of the particular challenges to the application of the pattern-or-practice 

framework that it seeks to advance here. For example, in its opening brief in this

case, Weyerhaeuser invokes parts of the ADEA’s legislative history, see Aplt’s Br.

at 15-22, and there is no discussion of that history in our two earlier cases. 

That argument is also unavailing. The fact that our earlier decisions do not

address particular arguments that Weyerhaeuser now advances does not transform

the legal conclusions that we reached in those cases from holdings into dicta. The

gist of Weyerhaeuser’s arguments is that, in applying the pattern-or-practice

framework to ADEA claims, Thiessen and Sandia Corp. were wrongly decided. 

Absent an intervening Supreme Court or en banc decision justifying such action,

we lack the power to overrule our own precedent. United States v.
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Hernandez-Rodriguez, 352 F.3d 1325, 1333 (10th Cir. 2003). In our view,

Weyerhaesuer’s expansive view of what constitutes dicta is founded upon an

untenable theory of stare decisis. As the Eleventh Circuit has observed, “[u]nless

and until the holding of a prior decision is overruled by the Supreme Court or by

the en banc court, that holding is the law of this Circuit regardless of what might

have happened had other arguments been made to the panel that decided the issue

first.” Cohen v. Office Depot, Inc., 204 F.3d 1069, 1076 (11th Cir. 2000)

(emphasis added).

C. The Supreme Court’s Decision in Gross v. FBL Financial Services, Inc.

does not overrule Thiessen.

In a supplemental letter to this court, Weyerhaeuser contends that the

Supreme Court’s recent decision in Gross v. FBL Financial Services, Inc., 129 S.

Ct. 2343 (2009) provides additional support for the view that the pattern-orpractice framework does not apply to ADEA claims. There, the Court held that “a

plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove,

by a preponderance of the evidence, that age was the ‘but-for’ cause of the

challenged adverse employment action” and that “the burden of persuasion does

not shift to the employer to show that it would have taken the action regardless of

age, even when plaintiff has produced some evidence that age was one motivating

factor in that decision.” 129 S. Ct. at 2352. 
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The Court contrasted that burden to the lesser one imposed on plaintiffs in

Title VII cases. See id. at 2349 (explaining that “Congress has since amended

Title VII by explicitly authorizing discrimination claims in which an improper

consideration was a motivating factor”) (internal citation omitted). It also noted

that, in Title VII “mixed motive” cases, once a “plaintiff . . . proves that [the

plaintiff’s membership in a protected class] played a motivating part in an

employment decision, the defendant may avoid a finding of liability only by

proving by a preponderance of the evidence that it would have made the same

decision even if it had not taken [that factor] into account.” Id. (quoting Price

Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989)) (alteration in original). The

Gross Court explained that it “ha[d] never held that this burden-shifting

framework applies to ADEA claims[,] [a]nd, we decline to do so now.” Id.

We are not persuaded by Weyerhaeuser’s argument. Gross does not

involve the pattern-or-practice procedure at issue here. Moreover, the Court

relied on the fact that Congress had amended Title VII to expressly adopt a

“motivating factor” standard for discrimination rather than a “but for” inquiry. 

Here, Weyerhaeuser cannot point to an analogous difference in the language of

Title VII and the ADEA that establishes that the pattern-or-practice framework is

proper under one anti-discrimination statute but not the other. 
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As we have noted, Title VII does contain a brief reference to pattern-orpractice claims filed by the Attorney General, see 42 U.S.C. § 2000-e-6(a), while

the ADEA contains no similar provision. However, the pattern-or-practice burden

shifting framework at issue here is mentioned in neither statute. Instead, that

framework has been established by the courts. See Teamsters, 431 U.S. at 359

n.45 (“Presumptions shifting the burden of proof are often created to reflect

judicial evaluations of probabilities and to conform with a party’s superior access

to the proof.”). Thus, in our view, the Supreme Court’s decision in Gross does

not overrule circuit precedent that authorizes the application of the pattern-orpractice framework in ADEA cases. 

III. CONCLUSION

The district court did not err in deciding to apply the pattern-or-practice

framework to the plaintiffs’ ADEA claim. We therefore AFFIRM its decision

denying Weyerhaeuser’s motion to strike and REMAND the case to the district

court for further proceedings consistent with this opinion.