Coleman

Opinion by Judge O’SCANNLAIN; Dissent by Judge BETTY B. FLETCHER.

We must decide whether former employees have raised a genuine issue of material fact as to whether they were illegally fired because of age.

I

A

Jerry Jeney (“Jeney”), Joseph Gentile (“Gentile”) and Perry Coleman (“Coleman”), along with hundreds of other employees nationwide, were laid off by the Quaker Oats Company (“Quaker”) in Arizona during a series of reductions-in-force (“RIFs”) from 1994 to 1995.

Jeney, a 55-year-old white male, 1 began working for Quaker in 1987 after it had purchased the company at which Jeney was employed. At Quaker, Jeney worked for six years as a sales representative, a position equivalent to that which he had held at other companies since 1969. Jeney’s responsibilities involved visiting supermarkets to rotate products, to arrange displays, to ensure adequate stocks, and to check if the supermarkets displayed all the company’s products they were supposed to carry.

In 1993, a RIF threatened Jeney’s job. Impressed with Jeney’s skills, Ken Willis, a Quaker supervisor, created a new position for him — -Area Retail Manager (“ARM”). Jeney was the only ARM in the Quaker organization…

Dissenting:

I respectfully dissent. The Quaker Oats Company (“Quaker”) embarked on a major *1298 restructuring of its work force involving considerable downsizing. It sought consultation to prevent gender and racial discrimination in the process, but none to prevent age discrimination. Nobody denies that the statistics in this case show that the reduction in force terminations seriously impacted the older employees— much more so than the younger employees. 1 So regardless of intent, the real issue in this case is whether the process had a disparate impact on the older protected members of the work force.

The majority blinds itself to our own circuit precedent and to what all the parties knew this case was about in refusing to look at disparate impact. For this reason, I must dissent.

To reach its result — finding disparate impact not sufficiently or timely pled -the panel adopts a rule that is inconsistent with our own prior precedent regarding the Age Discrimination in Employment Act (ADEA). Yet, even under the erroneous rule the panel adopts, the plaintiffs in this case have stated a discrimination claim using the disparate impact theory and the district judge should be…