1 United States Court of Appeals,

Fifth Circuit.

No. 94-20040.

Robert R. MOONEY, et al., Plaintiffs-Appellants,

v.

ARAMCO SERVICES CO., et al., Defendants,

Arabian American Oil Co., Defendant-Appellee.

James Elliott McMILLAN, et al., Plaintiffs,

Raymond V. Aberle, et al., Plaintiffs-Appellants,

v.

ARAMCO SERVICES CO., et al., Defendants,

Arabian American Oil Co., Defendant-Appellee.

Thomas F. KAUS, et al., Plaintiffs,

Raymond V. Aberle, et al., Plaintiffs-Appellants,

v.

ARAMCO SERVICES CO., et al., Defendants,

Arabian American Oil Co., Defendant-Appellee.

Arthur G. BRUNST, et al., Plaintiffs,

Raymond V. Aberle, et al., Plaintiffs-Appellants,

v.

ARABIAN AMERICAN OIL CO., Defendant-Appellee.

Robert OLSON, et al., Plaintiffs,

Raymond V. Aberle, et al., Plaintiffs-Appellants,

v.

ARABIAN AMERICAN OIL CO., Defendant-Appellee.

John R. RICHARDS, et al., Plaintiffs,1 "Appellants" refers to the opt-in plaintiffs collectively.

"Trial Plaintiffs" refers to the Appellants that actually

proceeded to trial, i.e., Robert R. Mooney, John Marcum, William

Holcomb, Kenneth Olson, Bobby Joe Williams and Gustav Thim.

2 As discussed below, the representative action originally

contained 154 members. Since the class decertification and

dismissal order was entered, several plaintiffs have died, filed

individual actions or have otherwise elected not to participate

in this appeal.

2

Raymond V. Aberle, et al., Plaintiffs-Appellants,

v.

ARABIAN AMERICAN OIL CO., Defendant-Appellee.

William V. OZOLIN, et al., Plaintiffs,

Kenneth O. Olson, et al., Plaintiffs-Appellants,

v.

ARABIAN AMERICAN OIL CO., Defendant-Appellee.

June 20, 1995.

Appeal from the United States District Court for the Southern

District of Texas.

Before REAVLEY, DUHÉ and PARKER, Circuit Judges.

DUHÉ, Circuit Judge:

Appellants appea l from the "decertification" of their Age

Discrimination in Employment Act representative action a nd from

certain rulings made by the district court during the trial of six

individual plaintiffs. We affirm.

I. BACKGROUND

Appellants 1 are eighty-five 2 former managerial and skilled

employees terminated under Aramco's "Manpower Control Program"

during 1984-87. In 1987, Robert Mooney, William Holcomb and John

Marcum filed their representative complaint alleging unlawful3 Approximately 1800 notices were sent.

3 termination in violation of the Age Discrimination in Emp loyment

Act (ADEA). Other plaintiffs filed similar ADEA complaints in the

same court and in the District of Delaware.

On Aramco's motion, the Delaware court transferred its cases

to Texas. After the transfer, on Appellants' motion, the Texas

court (hereinafter district or trial court) ordered consolidation

of the cases. In November 1989, Judge Lynn Hughes authorized

notice of the ADEA class proceeding to persons age 40 and over who

were terminated under the Aramco Manpower Control Program (MPC) on

or after October 9, 1984. 3 Eventually, 154 persons (including the

original 18 plaintiffs in the consolidated action) elected to

"opt-in" to the representative action. Thereafter, the case

proceeded on a collective basis. Aramco deposed many of the

plaintiffs, and all parties conducted extensive, class-wide

discovery.

In June 1992, the consolidated cases were reassigned to Judge

Ewing Werlein. In response to a request from Judge Werlein,

Plaintiffs proposed a two-phase "pattern or practice" trial,

modeled on International Brotherhood of Teamsters v. United States,

431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Aramco argued

that the cases should proceed as individual actions, and moved that

the "class" be dissolved because plaintiffs were not "similarly

situated." In May 1993, the district court ordered the parties to

select eight "party plaintiffs" for "the first trial" in October

1992.4 29 U.S.C. § 216(b).

4

In Aug ust 1992, approximately six weeks before trial, the

district court granted Aramco's motion to dissolve the "class" and

dismissed all of the opt-in plaintiffs, including six of the eight

plaintiffs who had been selected for trial. In September 1992, the

district cour t denied Aramco's motion to dismiss Appellants'

pattern and practice claim, and six individual plaintiffs proceeded

to trial on October 4, 1992. The jury found for Aramco on all six

claims.

II. DENIAL OF REPRESENTATIVE ACTION

The ADEA, at 29 U.S.C. § 626(b), explicitly incorporates

section 16(b) of the Fair Labor Standards Act, 4 which provides that

a person may maintain an action on "behalf of himself

... and other

employees similarly situated. No employee shall be a party

plaintiff to any such action unless he gives his consent in writing

to become such a party and such consent is filed in the court in

which such action is brought." 29 U.S.C. § 216(b) (emphasis

supplied). A difference between an ADEA representative action and

a Fed.R.Civ.P. 23 class action is that the ADEA action follows an

"opt-in" rather than an "opt-out" procedure. S ee La Chapelle v.

Owens-Illinois, Inc., 513 F.2d 286, 289 (5th Cir.1975). However,

in discussing the representative action, most courts utilize class

action terminology from Rule 23 cases.

A. Standard of Review

In the Fed.R.Civ.P. 23 context, a district court's class

certification or decertification decision is reviewed under a5

clearly erron eous standard. S ee Merrill v. Southern Methodist

University, 806 F.2d 600, 607 (5th Cir.1986),

We review the district court's refusal to certify the class on

an abuse of discretion st andard. On appeal, however, we

examine not only the evidence available to the district court,

but also "the facts developed at the trial of plaintiffs'

individual claims."

(citations omitted); B riggs v. Anderson, 796 F.2d 1009, 1017 (8th

Cir.1986) (abuse of discretion review of district court's decision

to decertify the class). Appellee argues that the same standard

should be applied to an ADEA certification/decertification

determination.

Appellants, on the other hand, argue tha t this court should

exercise plenary review because the district court employed an

incorrect legal standard. For this proposition, Appellants cite

Forbush v. J.C. Penney Co., 994 F.2d 1101, 1104-06 (5th Cir.1993).

Therein, we employed a de novo standard to review whether the

district court properly applied Fed.R.Civ.P. 23 to a class

certification question.

We hold that the ADEA decertification decision requires a

two-part standard of review. The initial question—i.e. what legal

standard should the district court have used—is a question of law

to be reviewed de novo. Once the correct legal standard is

ascertained, the district court's application of the standard must

be reviewed for abuse of discretion.

B. The Meaning of "Similarly Situated"

The center of this dispute is what "similarly situated" means

in the ADEA context. Although there are many district court cases5 Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J.1987),

mandamus granted in part, appeal dismissed, Lusardi v. Lechner,

855 F.2d 1062 (3rd Cir.1988), vacated in part, modified in part,

and remanded, Lusardi v. Xerox Corp., 122 F.R.D. 463

(D.N.J.1988), aff'd in part, appeal dismissed, Lusardi v. Xerox

Corp., 975 F.2d 964 (3rd Cir.1992).

6 Appellants advance Sperling v. Hoffman-La Roche, Inc., 118

F.R.D. 392, 407 (D.N.J.1988), aff'd in part and appeal dismissed

in part, 862 F.2d 439 (3rd Cir.1988), aff'd and remanded,

Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 110 S.Ct. 482,

107 L.Ed.2d 480 (1989), as a different approach to the "similarly

situated" inquiry. Upon careful examination, however, it is

obvious that the Sperling court only addressed class

certification at the notice stage. In fact, the court leaves

open the possibility of future decertification of the class. See

id. at 407 ("[N]othing would appear to prevent the court from

modifying or reversing a decision on "similar situations' at a

later time in an action, as new facts emerge."). We read the

Sperling case as simply another example of the two-stage Lusardi

analysis.

7 Four factors were named as the primary reasons for the

initial decertification of the Lusardi class. See Lusardi v.

Xerox Corp., 118 F.R.D. 351, 359 (D.N.J.1987),

For several reasons, including (1) the disparate

factual and employment settings of the individual

plaintiffs; (2) the various defenses available to

6 addressing the issue, the proper class certification procedure for

an ADEA representative action is larg ely a matter of first

impression for the circuit courts. The district court cases seem

to divide along two basic lines.

1. Two-Stage Class Certification

The first line of cases is typified by Lusardi v. Xerox

Corp., 5 and repre sents the method followed by the trial court in

this matter. 6 L usardi and its progeny are remarkable in that they

do not set out a definition of "similarly situated," but rather

they define the requirement by virtue of the factors considered in

the "sim ilarly situated" analysis. 7 In other words, this line ofXerox which appear to be individual to each plaintiff;

(3) fairness and procedural considerations; and (4)

the apparent absence of filings required by the ADEA

prior to instituting suit, the class will be

decertified.

On remand, the Lusardi court examined a variety of factors,

and again decided to decertify the class.

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 performed 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.

....

There is no commonality amoung [sic] the people who

were subject to more than sixty-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. The

disparate individual defenses asserted by Xerox

heightens the individuality of the claims and

complicates the significant management problems.

Lusardi v. Xerox Corp., 122 F.R.D. 463, 465-66 (D.N.J.1988)

(citations omitted).

7 cases, by its nature, does not give a recognizable form to an ADEA

representative class, but lends itself to ad hoc analysis on a

case-by-case basis.

Under Lusardi, the trial court approa c hes the "similarly

situated" inquiry via a two-step analysis. The first determination

is made at the so-called "notice stage." At the notice stage, the

district court makes a decision—usually based only on the pleadings

and any affidavits which have been submitted—whether notice of the8 At the notice stage, "courts appear to require nothing more

than substantial allegations that the putative class members were

together the victims of a single decision, policy, or plan

infected by discrimination." Sperling v. Hoffman-La Roche, Inc.,

118 F.R.D. at 407.

8 action should be given to potential class members.

Because the court has minimal evidence, this determination is

made using a fairly lenient standard, 8 and typically results in

"co nditional certification" of a representative class. If the

district court "conditionally certifies" the class, putative class

members are given notice and the opportunity to "opt-in." The

action proceeds as a representative action throughout discovery.

The second determination is typically precipitated by a motion

for "decertification" by the defendant usually filed after

discovery is largely complete and the matter is ready for trial.

At this stage, the court has much more information on which to base

its d ecision, and makes a factual determination on the similarly

situated question. If the claimants are similarly situated, the

district court allows the representative action to proceed to

trial. If the claimants are not similarly situated, the district

court decertifies the class, and the opt-in p laintiffs are

dismissed without prejudice. The class representatives—i.e. the

original plaintiffs—proceed t o trial on their individual claims.

B ased on our review of the case law, no representative class has

ever survived the second stage of review.

2. Spurious Class Action

The second line of cases is typified by Shushan v. University

of Colorado, 132 F.R.D. 263 (D.Colo.1990). S hushan espouses the9

vie w that § 16(b) of the Fair Labor Standards Act (FLSA) merely

breathes new life into the so-called "spurious" class action

procedure previously eliminated from Fed.R.Civ.P. 23. Building on

this foundation, the court determined that Congress did not intend

to create a completely separate class action structure for the FLSA

and ADEA context, but merely desired to limit the availability of

Rule 23 class action relief under either Act. In application, the

court determined that Congress intended the "similarl y situated"

inquiry to be coextensive with Rule 23 class certification. In

other words, the court looks at " numerosity," "commonality,"

"typicality" and "adequacy of representation" to determine whether

a class should be certified. Under this methodology, the primary

distinction betwee n an ADEA representative action and a

Fed.R.Civ.P. 23 class action is that persons who do not elect to

opt-in to the ADEA representative action are not bound by its

results. In contrast, Rule 23 class members become party to the

litigation through no action of their own, and are bound by its

results.

C. The District Court's Approach

The Lusardi procedure was followed in this case. Judge Hughes

made an initial determination that the claimants w ere similarly

situated, and permitted notice to be given to the putative class.

Later, after 154 persons had "opted-in," and after extensive

discovery had been conducted, Aramco moved to decertify the class.

Judge Werlein determined that the claimants were not simi larly

situated, granted Aramco's motion and dismissed the opt-in10

plaintiffs without prejudice.

Judge Werlein set out extensive reasons for his finding.

An analysis of the pertinent facts in the case at bar

reveals that the would-be members of the ADEA representative

class were subject to vastly disparate employment situations.

First

... Pl aintiffs were employed by at least 93 different

Aramco departments scat tered over 11 separate locations in

Saudi Arabia. Virtually every plaintiff worked in a different

division of the company and held a distinct job title

requiring different job skills. Moreover, Plaintiffs differ

significantly in employment characteristics such as job tenure

(varying from 1 to 34 years), employment history, salary

g rade, qualifications, and education. Plaintiffs were of

vastly different ages when hired, and varied in age at

termination from 40 to 68. As discussed in more detail below,

Plaintiffs were discharged from their em ployment in several

different years upon the recommendation of different

decision-making supervisors for a variety of reasons.

The specific circumstances of termination alleged by

Plaintiffs are equally diverse. Deposition testimony from the

respective Plaintiffs reveals a wide range of claims and

theories of recovery, including: discriminatory selection for

RIF, forced retirement, replacement with younger, older,

American, Saudi, or Muslim employees, and Aramco's refusal to

transfer Plaintiffs to other departments. Some Plaintiffs

allege that Aramco should have "bumpe d" other employees to

create open positions for them. Still others claim that

Aramco "retaliated" against them by refus ing to rehire them

after they complained of discriminatory treatment.

....

In view of the hodgepodge of claims and allegations, it is

clear that the defenses available to Aramco are just about as disparate as the Plaintiffs themselves.

....

Moreover, because Aramco, as a defendant in an ADEA action, is

entitled to articulat e "legitimate, nondiscriminatory

reason[s] for the employees' reaction, including "reasonable

factors other than age" ("RFOA"), the court's evaluation of

Aramco's defenses inevitably will require presentation of

evidence unique to each individual plaintiff.

....

T hird, the evidence submitted by Aramco indicates that

there existed no single company-w ide reduction in force11

("RIF"). As reflected in the affidavits of Aramco officers

and supervisors, the downsizing of the Aramco work force was

i mplemented on a highly decentralized level by loca l

management. In contrast to the cases relied upon by

Plaintiffs, wherein the common thread unifying Plaintiffs'

claims was a company-wide action executed by a relatively

small number of supervisors within a short time period, in the

instant case it appears that "t he elections for individual

terminations were made by hundreds of different supervisors in

separate departments with differing constraints and

objectives, based upon considerations of various skills,

performance factors, and business need in each [of five]

year[s]."

....

These facts, and the absence of any contr overting evidence

submitted by Plaintiffs, lead the Court to conclude that

Aramco's surplussing decisions were made in a manner similar

to that in Lusardi: between 1984 and 1988, Aramco experienced

not one, but well over 297 separate RIFs of expatriate

employees.

....

The facts developed at this time indicate that it would be

difficult, if not impossible, to identify as many as two or three of the more than 130 potential Plaintiffs who could be

said to be "similarly situated" within the meaning of the ADEA

statute. Moreover, Plaintiffs themselves have made no attempt

to identify a smaller group of individuals who might comprise

a "similarly situated" sub-class for ADEA purposes.

....

Other than the global allegations of Plaintiffs that the

ADEA was violated, that they were formerly Aramco employees,

and that they were in the protected age group over forty,

there is no real commonality among the named Plaintiffs and

the "opt-in" group.

....

For numerous reasons, including (1) the widely disparate

factual, employment, and discharge histories of the individual

Plaintiffs; (2) the variety of particular, differing, and

sometimes uniqu e defenses available to Aramco in contesting

the va ried and disparate claims of 130 or more former

employees; and (3) fairness and procedural considerations,

the Court concludes that Plaintiffs are not "si milarly

situated" within the meaning of Section 16(b) of the ADEA.9 The remaining issues relate to the trial of claims of the

six individual plaintiffs.

12 (citations and footnotes omitted).

D. Analysis

We find it unnecessa ry to decide which, if either, of the

competing methodologies should be employed in making an ADEA class

certification decision. From the record, it is apparent that in

this case, no matter how we ana lyze the similarly situated

requirement, we cannot say that the district court abused its

discretion in finding that the "opt -in" plaintiffs were not

similarly situated. In so holding we specifically do not endorse

the methodology employed by the district court, and do not sanction

any parti cular methodology. We simply need not decide the

appropriate methodology under these facts, and therefore leave that

inquiry for another day.

III. MIXED-MOTIVES THEORY 9

Trial Plaintiffs first assert that the district court erred by

failing to instruct the jury on a "mixed-motives" theory of ADEA

discrimination under Price Waterhouse v. Hopkins, 490 U.S. 228, 109

S.Ct. 1775, 104 L.Ed.2d 268 (1989).

A. Standard of Review

The standard of review for objections to the district court's

jury instructions are set out in FDIC v. Mijalis, 15 F.3d 1314,

1318 (5th Cir.1994):

F irst, the challenges must demonstrate that the charge as a

whole creates "substantial and ineradicable doubt whether the

jury has been properly guided in its deliberations." Second,

even if the jury instructions were erroneous, we will not10 See e.g. Armbruster v. Unisys Corp., 32 F.3d 768, 778 (3rd

Cir.1994),

[I]n the Price Waterhouse framework ... the evidence

the plaintiff produces is so revealing of

discriminatory animus that it is not necessary to rely

13 reverse if we de termine, based upon the entire record, that

the challenged instruction could not have affected the outcome

of the case. If a party wishes to complain on appeal of the

district court's refusal to give a proffered instruction, that

party must show as a threshold matter that the p roposed

instruction correctly stated the law.

B. Mixed-Motives Theory

In general, a plaintiff can prove age discrimination in two

ways. A plaintiff can prove discriminatory animus by direct

evidenc e or by an indirect or inferential method of proof.

Discrimination can be shown indirectly by following the "pretext"

method of p roof set out in M cDonnell Douglas Corp. v. Green, 411

U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973). "The shifting

burdens of proof set forth in McDonnell Douglas are designed to

assure that the "plaintiff [has] his day in court despite the

unavailability of direct evidence.' " Trans World Airlines, Inc.

v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 622, 83 L.Ed.2d 523

(1985).

If, however, plaintiff produces direct e vidence of

discrimination, the McDonnell Douglas test is "inapplicable." I d.,

469 U.S. at 119, 105 S.Ct. at 621. The P rice Waterhouse,

mixed-motives theory of discrimination comes into play where direct

evidence of discrimination is presented, but the employer asserts

that the same adverse employment decision would have been made

regardless of discrimination. 10 Although P rice Waterhouse can beon any presumption from the prima facie case to shift

the burden of production. Both the burden of

production and the risk of nonpersuasion are shifted to

the defendant who, because of the inference the overt

evidence showing the employee's bias permits, must

persuade the factfinder that even if discrimination was

a motivating factor in the adverse employment decision,

it would have made the same employment decision

regardless of its discriminatory animus.

11 See Price Waterhouse, 490 U.S. at 246, 109 S.Ct. at 1788

("[T]he employer's burden is most appropriately deemed an

affirmative defense: the plaintiff must persuade the factfinder

on one point, and the employer, if it wishes to prevail, must

persuade it on another.").

14 characterized as a method to prove disc r imination, the

mixed-motives theory is probably best viewed as a defense for an

employer. 11

Unlike McDonnell Douglas, which simply involves a shifting of

the burden of production, Price Waterhouse involves a shift of the

burden of persuasion to the defendant. In other words, under P rice

W aterhouse, once a plaintiff presents direct evidence of

discrimination, the burden of proof shifts to the employer to show

that the same adverse employment decision would have been made

regardless of discriminatory animus. If the employer fails to

carry this burden, plaintiff prevails.

Our prior case law and the Price Waterhouse opinion make

clear that the mixed-motives and pretext theories require different

elements of p roof. S ee Price Waterhouse, 490 U.S. at 243 n. 12,

109 S.Ct. at 1787 n. 12,

Nothing in this opinion should be taken to suggest that a case

must be correctly labeled as either a "pretext" case or a

"mixed-motives" case from the beginning in the District Court;

indeed, we expect that plaintiff often will allege, in the

alternative, that their cases are both. Discovery often will15

be necessary before the plaintiff can know whether both

legitim ate and illegitimate considerations played a part in

the decisions against her. At some point in the proceedings,

of course, the District Court must decide whether a particular

case involves mixed motives. If the plaintiff fails to

satisfy the fact finder that it is more likely than not that

a forbidden characteristic played a par t in the employment

decision, then she may prevail only if she proves, following

Burdine, that the employer's stated reason for its decision is

pretextual.

See also, Waltman v. International Paper Co., 875 F.2d 468, 481

(5t h Cir.1989) ("[T]he elements of proof in a sex discrimination

claim will vary depending on whether the evidence leads to a

discrimination claim based on "mixed motives' or "pretext.' "). In

summary, Price Waterhouse and McDonnell Douglas are alternative

methodologies for proving discrimination. To be entitled to an

instruction, under either theory, plaintiff must demonstrate that

he has submitted evidence of its requisite elements.

C. Application

In this case, Trial Plaintiffs requested an instruction which

purported to combine the Price Waterhouse and M cDonnell Douglas

theories into a single instruction. While the district court gave

the jury a McDonnell Dougla s instruction, the Price Waterhouse

instruction was rejected. We must determine whether Trial

Plaintiffs were entitled to a Price Waterhouse instruction.

As mentioned above, the fundamental prerequisite to the

mixed-motives instruction is the presentation of direct evidence of

discrimination.

In Brown v. East Mississippi Electric Power Ass'n, [989 F.2d

858 (5th Cir.1993),] we defined direct evidence in the

employment discrimination context: "[d]irect evidence is

evidence which, if believed, proves the fact [of

discriminatory animus] without inference or presumption." In12 See also Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444,

448-49 (8th Cir.1993),

What evidence is sufficient to entitle a plaintiff

to a Price Waterhouse burden-shifting instruction?

Initially, it is clear that merely establishing a prima

facie case of discrimination is not enough. Rather,

the plaintiff must present "evidence of conduct or

statements by persons involved in the decisionmaking

process that may be viewed as directly reflecting the

alleged discriminatory attitude ... sufficient to

permit the factfinder to infer that that attitude was

more likely than not a motivating factor in the

employer's decision."

Not all comments that reflect a discriminatory

attitude will support an inference that an illegitimate

criterion was a motivating factor in an employment

decision. In Beshears [ v. Asbill, 930 F.2d 1348 (8th

Cir.1991) ], we distinguished "[c]omments which

demonstrate a "discriminatory animus in the decisional

process' or those uttered by individuals closely

involved in employment decisions," from " "stray

remarks in the workplace,' "statements by

nondecisionmakers,' or "statements by decisionmakers

unrelated to the decisional process.' " While evidence

of the former type of remark might be sufficient to

entitle a plaintiff to a Price Waterhouse instruction,

we reject the latter as insufficient.

16 that case we found that a supervisor's open and routine use of

racial slurs "constitutes direct evidence that racial animus

was a motivating factor ..." in employment decisions.

Similarly, in Price Waterhouse v. Hopkins, the Supreme Court

indicated the kind of comments that constitute direct evidence

of gender discrimination. In that case, one partner referred

to the plaintiff as "macho." Another suggested that she

"overcompensated for being a woman." A third advised her to

take "a course at charm school." And a fourth advised her to

"walk more femininely, talk more femininely, dress more

femininely

... and wear jewelry." Like the supervisor's

comments in Brown, these comments dir ectly suggest the

existence of bias; no inference is necessary. In both cases,

the offending comments cannot reasonably be interpreted as

a nything other than a reflection of bias—either racial or

gender-based.

Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir.1994)

(per cur iam). 1 2 Before the P rice Waterhouse methodology can be17

employed, plaintiff bears the "burden of persuasion on the issue of

whether [improper factors] played a p art in the employment

decision." Price Waterhouse, 490 U.S. at 246, 109 S.Ct. at 1788.

Trial Plaintiffs advanced several items that they argue

constitute direct evidence of discrimination. First is a

memorandum by a senior vice president purporting to encourage the

early retirement or dismissal of older employees. The memo,

however, explicitly excludes American employees from its scope, and

therefore does not provide direct evidence of discrim ination

against Trial Plaintiffs all of whom are American.

The remaining evidence relates to allegedly discriminatory

statements made to four of the Trial Plaintiffs by their

supervisors. Specifically, Trial Plaintiffs state,

Thim's s upervisor said he wanted to replace Thim with a

"younger and cheaper" engineer. Olson's supervisor said that

it "must have been your age". Williams's supervisor declared

that plaintiff would have a "good case of age discrimination."

Mooney heard Dan Christy—the man who recommende d his

discharge—tell a younger enginee r that Aramco was "going to

get rid of the older employees with the higher salaries."

These statements fail to constitute Price Waterhouse "direct

evidence".

Even if we accept the statements at face value, they do not

provide discriminatory animus "without inference or presumption."

As we have stated previously, "[t]o shift the burden on the

employer to show by a preponderance of the evidence that it would

have made the same decision even without the forbidden factor, the

employee must show that "the employer actual ly relied on [the

forbidden factor] in making its decision.' " L angley v. Jackson13 According to Thim, his supervisor stated, "If I can

replace an expensive American expat with a younger and cheaper

Brit, I can save the company a lot of money."

14 Mooney testified in part,

"Well, as I recall, Dan Lawlor, who was a younger

engineer, was afraid that he might be surplussed. So, he

was talking to Dan Christy about this and Dan told him that,

"Don't worry. They're going to get rid of the older

employees with the higher salaries."

15 Olson testified in part,

"Q. Did you ask Mr. Combs at your January, 1985,

meeting why you were being fired?

A. Yes.

Q. What did he tell you?

A. He said it couldn't be because of my performance

because that's been excellent. "So, it must be your age.' "

16 Williams testified in part,

"Q. Did you overhear Mr. Churchville make any other

comments about your termination at a later date?

A. Yes. Within a week after I had been given my formal

letter I was sitting at my desk and ... I overheard Pat

talking to the other person and saying, "Williams has a good

case against Aramco for age discrimination."

18 State University, 14 F.3d 1070, 1075 (5th Cir.1994) (emph asis in

original).

Although the statement allegedly made to Thim 13 and the

statement allegedly overheard by Mooney 14 create inferences that age

played a part in their terminations, when taken in their entirety,

both statements are primarily indicative of a desire to save money

b y employing persons at lower pay. The statements to Olson 1 5 a n d

Williams 16 merely constitute speculation as to possible17 Finally, "even if the jury instructions were erroneous, we

will not reverse if we determine, based on the entire record,

that the challenged instruction could not have affected the

outcome of the case." FDIC v. Mijalis, 15 F.3d 1314, 1318 (5th

Cir.1994). Trial Appellants have failed to satisfy this burden.

The jury plainly did not believe their testimony under the lower

"inferential evidence" standard employed in the McDonnell Douglas

analysis. Consequently, a reasonable jury could not have found

that the evidence presented constituted the higher level of

"direct evidence" necessary to shift the burden of persuasion to

the defendant.

19 discrimination in the termination of Trial Plaintiffs. There is no

evidence that Appellee "actually relied on" Trial Plaintiffs' age

in making the decision. While we could i nfer such a conclusion

from these statements, we cannot say that they provide " direct

evidence " of age related animus. 17

IV. PATTERN OR PRACTICE CLAIM

A. Pattern or Practice Jury Instruction

Trial Plaintiffs argue that their pat tern and practice

instruction was erroneously excluded.

1. Standard of Review

We apply the same standard of review to the district court's

exclusion of the requested pattern and practice instruction as we

applied in our analysis of the omitted mixed motives instruction.

2. Analysis

A "pattern or practice" claim is not a separate cause of

action, but merely another method by which disparate treatment can

be shown. The Supreme Court has set out the burden of establishing

a "pattern or practice of discrimination."

[D]emonstrating the existence of a discriminatory pattern or

practice establishes a presumption that the individual class

members had bee n discriminated against on account of race.20

Proving isola ted or sporadic discriminatory acts by the

employer is insufficient to establish a prima facie case of a

pattern or practice of discrimination; rather it must be

established by a preponderance of the evidence t hat "racial

discrimination was the company's standard operating

procedure—the regular rather than the unusual practice. "

Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 875-76,

104 S.Ct. 27 94, 2799, 81 L.Ed.2d 718 (1984) (citations omitted,

emphasis supplied). Trial Plaintiffs' proposed instruction stated,

in relevant part,

If you find that in its selection of employees for

termination the defendant regularly and purposefully treated

persons age 40 or older less favorably than other employees on

account of their age, then you must find that defendant has

engaged in a pattern or practice of discrimination.

If you find that the defendant discriminated as a pattern

or practice, you must presume that each individual plaintiff

was discriminated a gainst. Once a pattern or practice has

been proven, the burden of proof shifts to defendant to show

by clear and convincing evidence that it would have terminated

the plaintiff even if it had not maintained a pattern or practice of age discrimination. Unless defendant makes this

showing, you must find that the defend ant discriminated

against each individual plaintiff.

Clear and convincing evidence is evidence that produces

in your mind a firm belief or conviction as to the matter at

issue. This involves a greater degree of persuasion than is

necessary to meet the preponderance of the evidence standard;

however, proof to an absolute certainty is not required.

Trial Plaintiffs' proposed instruction failed to properly state the

law. In the first instance, the instruction fails to state that

Trial Plaintiffs must show disparate treatment by a preponderance

of the evidence. Second, the instruction fails to include the

Supreme Court's caveat that "isolated and individual" acts of

discrimination are not sufficient to establish a pattern or

practice. Finally, the instruction improperly states that

Appellees must prove by " clear and convincing evidence that it18 Trial Plaintiffs improperly rely on Baxter v. Savannah

Sugar Refining Corp., 495 F.2d 437, 445 (5th Cir.1974), cert.

denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974), for

their contention that a higher standard should be required of

Appellees after the burden of proof shifts. The Price Waterhouse

Court specifically rejected the idea that upon the shifting of

the burden the employer should be required to show

non-discrimination by "clear and convincing" evidence rather than

be the usual "preponderance" of the evidence standard. See Price

Waterhouse, 490 U.S. at 252-54, 109 S.Ct. at 1792-93.

21 would have terminated the plaintiff even if it had not maintained

a pattern or practice of age discrimi nation." 1 8 (emphasis

supplied).

However, even assuming—as the Trial Plaintiffs contend—that

the district court erred by rejecting rather than modifying the

requested instruction, Trial Plaintiffs have failed to show that

they were entitled to the instructio n. Trial Plaintiffs simply

failed to show, either through statistics or anecdota l evidence,

that anything other than "sporadic and in dividual" acts of

discrimination occurred. In fact, the jury reasonably concluded

that Trial Plaintiffs had failed to sh ow any individual

discrimination.

B. Pattern or Practice Evidence

1. Standard of Review

Nex t Trial Plaintiffs complain of the exclusion of certain

witnesses.

A trial judge's ruling on the admissibility of evidence is

generally reviewed for an abuse of discretion. J on-T Chems., Inc.

v . Freeport Chem. Co., 704 F.2d 1412, 1417 (5th Cir.1983). When

the admissibility determination necessarily involves a legal19 At trial, Trial Plaintiffs complained of the exclusion of

17 witnesses, however, according to Trial Plaintiffs, four of the

witnesses ultimately testified. Of the remaining 13 witnesses,

Trial Plaintiffs briefed their arguments as to only ten

witnesses, and therefore have waived their objections to the

exclusion of the remaining three witnesses.

22 decision, this Court should consider the validity of the underlying

legal analysis. S ee United States v. Beechum, 582 F.2d 898, 909-18

(5th Cir.1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct.

1244, 59 L.Ed.2d 472 (1979); United States v. Robinson, 700 F.2d

205, 210 (5th Cir.1983), cert. denied, 465 U.S. 1008, 104 S.Ct.

1003, 79 L.Ed.2d 235 (1984). "We will not reverse a district

court's evidentiary rulings unless t hey are erroneous and

substantial prejudice results. The burden of proving substantial

prejudice lies with the party asserting error." FDIC v. Mijalis,

15 F.3d at 1318-19.

2. Analysis

Trial Plaintiffs asse rt that the district court abused his

discretion by excluding ten 19 anecdotal witnesses relating to their

pattern or practice claim. We must start with the district court's

ruling on the issue.

On anecdotal evidence , in my judgment the use of

witnesses who are plaintiffs in this litigation and whose case

yet has to be tried bec ause they're not being tried at this

time ... to allow those persons to testify in this case with

regard to their own anecdotal experiences

... t he merit of

doing that or the probative value of allow ing that is

outweighed by the overwhelming difficulties th at that would

cause in efficiently providing a trial to these six plaintiffs

and fairly permitting each s ide to present their cases with

regard to these six plaintiffs during the two-week period that

has been allowed for trial.

....23 However, in the event that anecdotal evidence is offered

with regard to other employees—that is, superviso r s, the

decision-makers that are involved with respect to these six

plaintiffs at times and places that proximately relate to the

claims of any of these six plaintiffs on trial—then I do not

preclude the plaintiffs from making that type of offer or

tender.

But other anecdotal evidence that would be unrelated to

the cases now on trial I'm going to rule would be excluded,

given the fact that we've got a company here with many thousands of employees, as I understand it.

....

And when you start going to anecdotal evidence of certain

of those individuals, it not only, it seems to me , works an

undue burden in a two-week trial upon the defendants to

respond or to try to put in a more favorable light to them

w hatever the evidence may be, but it actually results in

trying more than the six claims that we've really set for

trial during this two-week period.

And I think that the pattern and practice contentions of

the plaintiff will be demonstrated i f the evidence shows it

... through statistical data and general policies promulgated

by the company or implemented by the company that will be

statistically evident

... and, plus, anecdotal evidence

directly related to decision-makers or supervisors whose

conduct is under attack by these six plaintiffs.

We next note that, as a general rule, anecdotal testimony of

individual acts of discrimination is admissible to bolster

statistical evidence of disparate treatment. See e.g. Teamsters,

431 U.S. at 338, 97 S.Ct. at 1856. However, to be relevant the

evidence must have a "t endency to make the existence of any fact

that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence."

Fed.R.Evid. 401.

As set forth above, Trial Plaintiffs' burden under the

"pattern or practice" methodology was to show that discrimination

"was the company's standard operating procedure—the regular rather24

than the unusual practice." Teamsters, 431 U.S. at 336, 97 S.Ct.

at 1855. Thus, to show relevancy, Trial Plaintiffs had to show

that the proffered anecdotal witnesses were sufficiently similar to

themselves so that the witnesses' testimony would have a tendency

to show "standard [discriminatory] operating procedure" a n d a

"regular rather than unusual practice" of discrimination.

Testimony of anecdotal witnesses with different supervisors,

working in different parts of the company was simply too attenuated

to relate to this threshold issue. Because of their dissimilarity

to the Trial Plaintiffs, instead of providing testimony of a

company-wide pattern or practice, the excluded anecdotal witnesses'

testimony would simply have been evidence of "spora dic and

isolated" occurrences. Because the witnesses were not relevant to

the Trial Plaintiffs' burden, we find no abuse of discretion in

their exclusion.

V. EXCLUSION OF REBUTTAL TESTIMONY

Trial Plaintiffs next argue that the district court erred by

refusing to allow Dr. Erich Prien (Prien) to testify as a rebuttal

witness.

A. Standard of Review

While our review is for abuse of discretion, we have

previously developed a four part test to determine whether the

district court properly excluded expert testimony.

"In reviewing district courts' exercise of discretion in

excluding expert testimony, we have previously considered the

f ollowing four factors: (1) the importance of the excluded

testimony, (2) the explanation of the party for its failure to

comply with the court's order, (3) the potential prejudice

that would arise from allowing the testimony, and (4) the25

availability of a continuance to cure such prejudice."

EEOC v. General Dynamics Corp., 999 F.2d 113 (5th Cir.1993).

B. Analysis

Trial Plaintiffs failed to designate Prien prior to the

district court's deadline for designation of expert witnesses. As

excuse for the late designation, Trial Plaintiffs asserted that

they could not have recognized the necessity of his testimony prior

to the designation of Appellee's experts. Trial Plaintiffs made no

effort to have Prien designated as an expert for their case in

chief, but instead moved to designate him as a rebuttal expert

witness. In their motion for leave, Appellants set forth the scope

of their designation of Prien:

One of the witnesses identified by Aramco is Dr. Richard

Jeanneret, who is designated as an "expert in industrial and

organizational psychology," to present an opinion on

"performance appraisal procedures used by Aramco." Plaintiffs

previously designated n o witness to testify about this

subject, e xcept to the extent that plaintiffs' expert Dr.

Ber nard Siskin will testify that there is a statistically

significant pattern that older employees tended to get worse

performance ratings.

T he expected testimony of Dr. Jeanneret, based on his

report, will attempt to validate the pe rformance appraisal

policy at Aramco. Thus, he concluded that "performance

ratings were a primary determinant in decisions regarding the

involuntary ter minations of Aramco employees." He further

opined that "[b]ase d on my review of the Aramco performance

appraisal program, it is my opinion that it is job-related and

that no component is inherently biased against individuals age

40 or over." Thus, only part of the report constitutes a

direct response to Dr. Siskin; the balance of the report

covers a new and different ground.

....

[P]laintiffs began to look for an expert to rebut the

report's conclusions with regard to the validity of Aramco's

performance appraisal and rating system, and engaged Dr. Prien

as a rebuttal witness. Dr. Prien will present opinions about20 In fact, Walker testified that he never had to use a force

ranking system in his department.

26 Aramco's performance appraisal policy, which would serve as a

direct rebuttal of Dr. Jeanneret's testimony.... Dr. Prien is

designated to rebut Aramco's defense that the performance

appra isal system was a valid, non-discriminatory method of

selecting candidates for surplus.

(citations to record omitted). At trial, Appellees elected not to

call Jeanneret, and the court ruled that Trial Plaintiffs could not

call Prien as a rebuttal witness.

T r ial Plaintiffs contend that although Jeanneret was not

called by Appellee, they should have been allowed to call Prien to

rebut the testimony of William Walker who, in part, testified to

his experience with the Aramco performance appraisal system. After

reviewing the relevant portions of Walker's testimony, we conclude

that he did not testify to matters within the scope of the

designation set out by Trial Plaintiffs. Walker did not testify as

an expert witness, did not testify to the use of the force ranking

system to determine terminations, 20 did not testify to performance

appraisal procedures outside of his own department and certainly

did not testify to the age neutrality or validity of the

performance appraisal system. In short, Prien's testimony was

wholly "unimportant" because Appellee's witness provided no

testimony within the scope of Prien's designation.

In addition, Appellees would have been greatly prejudiced by

Prien's testimony. Although he had been deposed, Appellee's

deposition was limited to questions concerning Prien's reaction to

Jennerete's report. In other words, at deposition Appellees only27

questioned Prien regarding matters within the scope o f his

designation. Because Appellees offered no testimony within the

scope of his designation, Prien had nothing to rebut, and any

testimony would have been unavoidably prejudicial. We find no

abuse of discretion in the district court's exclusion of Prien's

testimony.

VI. EXCLUSION OF EX GRATIA CLAIMS

A. Background

Appellants' final argument deals with the last-minute

exclusion of their ex gratia claims. The e x gratia claims are

based on allegations that Aramco paid employees over the age of 49

substantially smaller severance payments than similar, younger

employees with the same length of service. On the first day of

trial, the district court granted the Appellee's earlier filed

motion to vacate the consolidation order and convert the matter

back into seven individual actions. The court held that,

[I]t's been determined that this is not and cannot

proceed as a r epresentative action—it seems to me that each

individual plaintiff's claims must be examined with respect to

whether they have been pe rfected, whether limitations has

[sic] run independently of the other plaintiffs.

Only one of the original named plaintiffs filed an EEOC charge

asserting an ex gratia claim. None of the Trial Plaintiffs filed

an EEOC charge asserting the clai m, nor did any of the Trial

Plaintiffs' complaints assert an ex gratia claim. As stated by the

district court,

[N]one of the six plaintiffs that are to proceed to trial had

asserted an ex gratia claim and all would be barred by

limitations if they undertook now to assert such claim.28

In an attempt to save their ex gratia claims, Trial Plaintiffs

attempted to resurrect a previously filed motion for leave to file

a second amended complaint (filed in one of the Delaware cases),

which had sought to add a class-w ide ex gratia claim. Trial

Plaintiffs asserted that filing the second amended complaint would

bring them under the "single filing rule," and allow all of the

complaints to ride on the single EEOC charge. The district court

denied the motion, refused to apply the "single filing rule", and

ruled that issues of EEOC charges and limitations would have to be

resolved on a case-by-case basis. Trial Plaintiffs argue that the

district court thus abused its discretion.

B. Analysis

As we have noted previously, "one cannot take legal action in

ADEA cases unless one has filed an administrative charge, in cases

arising in Texas, within 300 days of the last act of

discrimination." A nson v. Univ. of Tex. Health Science Center, 962

F.2d 539, 540 (5th Cir.1992). However, "[t]he federal courts now

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." I d. at 541. This

so-called "single filing rule" generally allows a plaintiff, w ho

did not file an EEOC cha rge, to piggyback on the EEOC complaint

filed by another person who is similarly situated. In this case,

all of the named Trial Plaintiffs filed an individual EEOC charge,

but faile d to include an e x gratia claim. Trial Plaintiffs now

attempt to rely on the ex gratia claim contained in the individual21 As we found previously, Appellants in this matter are not

similarly situated to each other or to other claimants. However,

the district court did not specifically address whether Trial

Plaintiffs might be similarly situated, for purposes of the

single filing rule, with regard to the ex gratia claim. Because

we find that single filing rule inapplicable for other reasons,

we do not address this issue.

29 EEOC charge of Robert Olson, a named plaintiff who was not included

in the group of Trial Plaintiffs. Whether the single filing rule

can be used by someone who actually filed a EEOC charge to append

an additional claim appears to be matter of first impression.

"It is uncontroversial that the "single filing rule' is not

limited to class actions but also can permit a plaintiff to join

individual AD EA actions if the named plaintiff filed a timely

administrative charge to permit "piggybacking' by th e joining

plaintiff." H owlett v. Holiday Inns, 49 F.3d 189, 195 (6th

Cir.1995). Two conditions must be satisfied. First, the person

attempting to piggyback must be s imilarly situated to the person

who actually filed the EEOC charge. 21 S ee Anson, 962 F.2d at 541.

Second, the charge must provide notice of the collective or

class-wide nature of the charge. See id. at 541-43. There is no

dispute that Olson's EEOC charge contained language purporting to

make the ex gratia claim class-wide, however, that does not end our

inquiry.

The policy behind the single filing rule is that "[i]t would

be wasteful, if not vain, for numerous employees, all with the same

grievance, to have to process many id entical complaints with the

EEOC." O atis v. Crown Zellerbach Corp., 398 F.2d 496, 499 (5th

Cir.1968). As long as the EEOC and the company are aware of the22 Cf. Anderson v. Unisys Corp., 47 F.3d 302, 308 (8th

Cir.1995),

For those plaintiffs who have never filed an

administrative charge and who are allowed to piggyback

on the filed claim of another, we deem it reasonable to

permit them to join suit as long as the claimant on

whose administrative filing they have relied timely

files suit after receiving right-to-sue letters from

the state and federal agencies.

Those plaintiffs who do file administrative

charges, however, should be bound by the statute of

30 nature and scope of the allegations, the purposes behind the filing

requirement are satisfied and no injustice or contr avention of

congressional intent occurs by allowing piggybacking. However,

where the party wishing to piggyback has filed his own EEOC charge,

policy cuts the other way.

Once the charge is filed, unless it is permissibly modified,

the EEOC and the employer are entitled to rely on the allegations

contained therein. To allow a plaintiff to file an EEOC charge,

file suit upon that charge and then, at the eleventh hour, when the

statute of limitations has run, to amend his complaint in reliance

on the charge of another belies the policies behind the single

filing rule and controverts congressional intent. The employee, by

failing to assert a particular al legation in his charge, has

necessarily excluded himself from the class of persons purportedly

covered by the charge of another. As a result, the EEOC and the

employer are given no notice and no opportunity to remedy his

complaint. He is bound by the parameters of his own EEOC charge,

and cannot subsequently utilize the single filing rule to avoid the

statute of limitations. 22 Because the single filing rule waslimitations, which in normally stated in the

right-to-sue letter. Even if those plaintiffs are

piggybacking on another employees timely administrative

charge, once they file separate administrative charges,

they cannot rely any further on the other claimant's

actions and must timely file suit after receiving their

right-to-sue letters.

31 inapplicable, the district court properly denied Trial Plaintiffs'

motion for leave to amend.

VII. CONCLUSION

For the reasons set forth herein, we affirm the orders and

rulings of the district court.

AFFIRMED.