Mooney v. Aramco Services Co.

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
 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 appeal from the "decertification" of their Age

Discrimination in Employment Act representative action and from

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

individual plaintiffs. We affirm.

I. BACKGROUND

Appellants1 are eighty-five2 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 unlawful

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
termination in violation of the Age Discrimination in Employment

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.

3
Approximately 1800 notices were sent.

3
 In August 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 court 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. See 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 a

4
29 U.S.C. § 216(b).

4
clearly erroneous standard. See 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 standard. 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); Briggs 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 that 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 cases

5
addressing the issue, the proper class certification procedure for

an ADEA representative action is largely 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 represents the method followed by the trial court in

this matter.6 Lusardi 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 "similarly situated" analysis.7 In other words, this line of

5
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
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 approaches 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 the

Xerox 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
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

"conditional 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 decision, 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 plaintiffs are

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

original plaintiffs—proceed to trial on their individual claims.

Based 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). Shushan espouses the

8
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
view 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 "similarly 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 between 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 were 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 similarly

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

9
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 ... Plaintiffs were employed by at least 93 different
Aramco departments scattered 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
grade, 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 employment 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 "bumped" other employees to
create open positions for them. Still others claim that
Aramco "retaliated" against them by refusing 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 articulate "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.

....

Third, the evidence submitted by Aramco indicates that
there existed no single company-wide reduction in force

10
("RIF"). As reflected in the affidavits of Aramco officers
and supervisors, the downsizing of the Aramco work force was
implemented on a highly decentralized level by local
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 "the 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 controverting 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 unique defenses available to Aramco in contesting
the varied and disparate claims of 130 or more former
employees; and (3) fairness and procedural considerations,
the Court concludes that Plaintiffs are not "similarly
situated" within the meaning of Section 16(b) of the ADEA.

11
(citations and footnotes omitted).

D. Analysis

We find it unnecessary 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 analyze 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 particular methodology. We simply need not decide the

appropriate methodology under these facts, and therefore leave that

inquiry for another day.

III. MIXED-MOTIVES THEORY9

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):

First, 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 not

9
The remaining issues relate to the trial of claims of the
six individual plaintiffs.

12
 reverse if we determine, 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 proposed
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

evidence or by an indirect or inferential method of proof.

Discrimination can be shown indirectly by following the "pretext"

method of proof set out in McDonnell 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 evidence of

discrimination, the McDonnell Douglas test is "inapplicable." Id.,

469 U.S. at 119, 105 S.Ct. at 621. The Price 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 Price Waterhouse can be

10
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
characterized as a method to prove discrimination, 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 Price

Waterhouse, 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 proof. See 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 will

on 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
 be necessary before the plaintiff can know whether both
legitimate 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 part 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

(5th 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 McDonnell Douglas

theories into a single instruction. While the district court gave

the jury a McDonnell Douglas 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." In

15
 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 directly suggest the
existence of bias; no inference is necessary. In both cases,
the offending comments cannot reasonably be interpreted as
anything 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 curiam).12 Before the Price Waterhouse methodology can be

12
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
employed, plaintiff bears the "burden of persuasion on the issue of

whether [improper factors] played a part 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 discrimination

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 supervisor 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 recommended his
discharge—tell a younger engineer 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 actually relied on [the

forbidden factor] in making its decision.' " Langley v. Jackson

17
State University, 14 F.3d 1070, 1075 (5th Cir.1994) (emphasis in

original).

Although the statement allegedly made to Thim13 and the

statement allegedly overheard by Mooney14 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

by employing persons at lower pay. The statements to Olson15 and

Williams16 merely constitute speculation as to possible

13
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
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 infer 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 pattern 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 been discriminated against on account of race.

17
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
 Proving isolated 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 that "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. 2794, 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 against. 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 defendant 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 it

20
would have terminated the plaintiff even if it had not maintained

a pattern or practice of age discrimination."18 (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 instruction. Trial Plaintiffs simply

failed to show, either through statistics or anecdotal evidence,

that anything other than "sporadic and individual" acts of

discrimination occurred. In fact, the jury reasonably concluded

that Trial Plaintiffs had failed to show any individual

discrimination.

B. Pattern or Practice Evidence

1. Standard of Review

Next 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. Jon-T Chems., Inc.

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

the admissibility determination necessarily involves a legal

18
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
decision, this Court should consider the validity of the underlying

legal analysis. See 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 they 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 assert that the district court abused his

discretion by excluding ten19 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 because they're not being tried at this
time ... to allow those persons to testify in this case with
regard to their own anecdotal experiences ... the merit of
doing that or the probative value of allowing that is
outweighed by the overwhelming difficulties that that would
cause in efficiently providing a trial to these six plaintiffs
and fairly permitting each side to present their cases with
regard to these six plaintiffs during the two-week period that
has been allowed for trial.

....

19
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
 However, in the event that anecdotal evidence is offered
with regard to other employees—that is, supervisors, 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
whatever 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 if 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 "tendency 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 rather

23
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" and 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 "sporadic 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
following 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) the

24
 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 no witness to testify about this
subject, except to the extent that plaintiffs' expert Dr.
Bernard Siskin will testify that there is a statistically
significant pattern that older employees tended to get worse
performance ratings.

The expected testimony of Dr. Jeanneret, based on his
report, will attempt to validate the performance appraisal
policy at Aramco. Thus, he concluded that "performance
ratings were a primary determinant in decisions regarding the
involuntary terminations of Aramco employees." He further
opined that "[b]ased 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 about

25
 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
appraisal 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.

Trial 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 only

20
In fact, Walker testified that he never had to use a force
ranking system in his department.

26
questioned Prien regarding matters within the scope of 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 ex 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 representative action—it seems to me that each
individual plaintiff's claims must be examined with respect to
whether they have been perfected, 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 claim, 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.

27
 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-wide 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." Anson 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." Id. at 541. This

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

did not file an EEOC charge, 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 failed to include an ex gratia claim. Trial Plaintiffs now

attempt to rely on the ex gratia claim contained in the individual

28
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 ADEA actions if the named plaintiff filed a timely

administrative charge to permit "piggybacking' by the joining

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

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

attempting to piggyback must be similarly situated to the person

who actually filed the EEOC charge.21 See 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 identical complaints with the

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

Cir.1968). As long as the EEOC and the company are aware of the

21
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
nature and scope of the allegations, the purposes behind the filing

requirement are satisfied and no injustice or contravention 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 allegation 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 was

22
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
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.

limitations, 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