## Facts

- Gary A. Thiessen worked in the Montgomery Ward/GE retail credit business from 1968, rose through management, and reached a high pay-grade level.
- General Electric Capital Corporation and a subsidiary (Montgomery Ward Credit Services, Inc., formerly Monogram Retail Credit Services, Inc.) operated the relevant retail credit business.
- Thiessen alleged a companywide discriminatory “blocker policy” aimed at older employees viewed as impeding advancement of younger workers.
- He claimed he was identified as a “blocker” and suffered adverse actions, including denial of a Las Vegas management position in 1993, removal from a long-held management role, and reassignment to “special assignments” from 1994 to 1996 rather than placement in permanent management.
- He sued under the Age Discrimination in Employment Act (ADEA) as a collective action under 29 U.S.C. § 216(b) on behalf of himself and similarly situated employees, asserting a pattern or practice of age discrimination.

## Issues

1. What standard governs whether ADEA plaintiffs are “similarly situated” for a § 216(b) collective action, and did the district court abuse its discretion by decertifying and dismissing opt-in plaintiffs?
2. Whether summary judgment was proper on Thiessen’s individual ADEA claim given the evidence of discriminatory intent and an alleged “blocker policy.”
3. Whether related participation and discovery rulings (additional opt-ins and deposition of corporate counsel) required reconsideration in light of the certification and merits errors.

## Decision

- The Tenth Circuit reversed the district court’s decertification of the collective action and reinstated the opt-in plaintiffs.
- The court held the district court applied an improper, merits-heavy approach by effectively treating the decertification motion like summary judgment on the class claims and by resolving factual disputes about the alleged policy.
- The Tenth Circuit reversed summary judgment on Thiessen’s individual ADEA claim, concluding the record contained triable disputes as to discriminatory intent.
- The case was remanded for further proceedings consistent with the appellate standards for § 216(b) similarity and for reconsideration of related procedural rulings.

## Legal Principles

- ADEA collective actions use the FLSA’s § 216(b) opt-in procedure; plaintiffs must be “similarly situated,” a determination distinct from adjudicating the merits.
- Courts may employ a flexible, staged (“ad hoc”) approach to § 216(b) certification/decertification, but may not impose summary-judgment-type proof demands at the collective-action stage.
- At decertification, relevant considerations include (i) disparities in factual and employment settings, (ii) defenses that are individualized, and (iii) fairness and procedural manageability; the inquiry should not become a full merits trial.
- Evidence suggesting a common policy or practice can satisfy the similarly situated threshold even if individual employment decisions differ in details.
- On summary judgment in an ADEA case, courts must not weigh credibility or choose among competing inferences where record evidence could permit a reasonable jury to find discriminatory intent.

## Conclusion

The Tenth Circuit reinstated an ADEA § 216(b) collective action and revived Thiessen’s individual age-discrimination claim, holding that the district court improperly converted the similarity inquiry into a merits determination and improperly granted summary judgment despite genuine disputes about an alleged companywide “blocker policy.”


Thiessen v. Gen. Elec. Cap. Corp., 267 F.3d 1095 (10th Cir. 2001)