Flavel v. Svedala Industries, Inc.

• Citation: 875 F. Supp. 550
• Decision Date: 02 August 1994
• Docket Number: No. 92-C-1095.,92-C-1095.
• Parties: Malcolm D. FLAVEL, individually and on behalf of all other persons similarly situated, Group Representative Plaintiff, and Robert F. Cnare, James R. Conradt, Major Coxhill, Robert K. Elbel, Malcolm D. Flavel, Russell H. Graf, Robert L. Isferding, Robert E. Jones, Chalasani C. Rayan (deceased), Richard Spoonamore, and Ronald J. Weiss, Individual Plaintiffs, and The United States Equal Employment Opportunity Commission, Intervenor Plaintiff representing the 11 named plaintiffs above, plus Robert W. Belling, Conrad Heinemann, William D. Meager, Byron K. Smay, and Robert Van Dyke, as additional plaintiffs represented by the United States, v. SVEDALA INDUSTRIES, INCORPORATED and Svedala, Incorporated, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

875 F. Supp. 550

Malcolm D. FLAVEL, individually and on behalf of all other persons similarly situated, Group Representative Plaintiff,

and

Robert F. Cnare, James R. Conradt, Major Coxhill, Robert K. Elbel, Malcolm D. Flavel, Russell H. Graf, Robert L. Isferding, Robert E. Jones, Chalasani C. Rayan (deceased), Richard Spoonamore, and Ronald J. Weiss, Individual Plaintiffs, and The United States Equal Employment Opportunity Commission, Intervenor Plaintiff representing the 11 named plaintiffs above, plus Robert W. Belling, Conrad Heinemann, William D. Meager, Byron K. Smay, and Robert Van Dyke, as additional plaintiffs represented by the United States, v. SVEDALA INDUSTRIES, INCORPORATED and Svedala, Incorporated, Defendants.

No. 92-C-1095.

United States District Court, E.D. Wisconsin.

August 2, 1994.

COPYRIGHT MATERIAL OMITTED

Jeffrey R. Ansel, Winthrop & Weinstine, St. Paul, MN, for Malcolm D. Flavel, Robert E. Jones.

Laurie A. Knocke, Stephen J. Snyder, Winthrop & Weinstine, St. Paul, MN, for Peter Flavel.

William H. Levit, Jr., Howard A. Pollack, Godfrey & Kahn, Thomas N. Harrington, Cook & Franke, John W. Brahm, Foley & Lardner, Milwaukee, WI, Steven P. Handler, Stephen D. Erf, David B. Bayless, McDermott, Will & Emery, Chicago, IL, for defendants.

MEMORANDUM AND ORDER

WARREN, District Judge.

Before the Court are the defendants' Motion for Severance, Motion to Bar Proposed Expert Testimony of Dr. Benson Rosen, and Motion to Bar Proposed Expert Testimony of Dr. Dale Belman in the above-captioned matter. For the following reasons, each motion is denied.

I. MOTION FOR SEVERANCE

As noted by the defendants, this matter involves age discrimination charges brought by sixteen former employees of two of the twelve business units operated by defendant Svedala Industries in the United States. Seven of the charges involve reductions in force at the Milwaukee (West Allis), Wisconsin business unit, which was primarily engaged in the pyroprocessing and grinding mill equipment businesses. Nine of the charges involve the actual termination of three employees and alleged constructive discharge of six employees at the crushing and screening business unit located in Appleton, Wisconsin.

According to the defendants, because "the terminations at the Milwaukee unit were markedly different from the terminations at the Appleton unit," and neither arose from the same transaction or occurrence under Federal Rule of Civil Procedure 20(a) ("Rule 20(a)") nor are "similarly situated" under the Age Discrimination in Employment Act ("ADEA"), separate trials should be conducted for each group in this case. They indicate that six of the seven charges relating to the Milwaukee unit involved employees terminated in the February 13, 1991 reduction-in-force "pertaining solely to the Milwaukee unit"; the seventh employee was terminated on January 26, 1990 during a merger of operations. The defendants argue that three of the nine Appleton charges involved actual terminations due to performance deficiencies or consolidation, while "the other six plaintiffs who were employed by the Appleton unit voluntarily retired or quit but are now alleging that they were constructively discharged." According to the defendants, Dr. Ki Joung, the General Manager of the Milwaukee unit, was the decisionmaker in the Milwaukee reduction-in-force, while William Guernsey, the General Manager of the Appleton unit, was the decision-maker in the Appleton unit terminations. The defendants claim that, because "discriminatory conduct or statements by employees other than the decisionmaker are irrelevant" in determining liability under the ADEA, "statements or conduct by Dr. Joung and his managers would be inadmissible to support the charges of the Appleton unit plaintiffs" and "statements or conduct by Mr. Guernsey and his managers would be inadmissible to support the charges of the Milwaukee unit plaintiffs." Separate trials are required, they assert, because they would be "severely prejudiced" by the admission of evidence impacting one unit in their defense of the other unit which "no cautionary instruction could cure"; they further argue that "separate trials would not delay the resolution of this case because little overlap in the admissible evidence would exist."

The plaintiffs respond that the defendants "engaged in a pattern or practice of age discrimination against older employees ... as evidenced in Svedala's hiring decisions, its assessment of plaintiffs and others for promotion, its response to transfer requests, the work environment it provided, and its selection of persons for termination." They claim that this policy of age discrimination was directed by Svedala's Swedish parent corporation and was implemented and enforced in the United States by Svedala's corporate management, offering evidence which they claim supports such conclusion. Based on this evidence, the plaintiffs argue that they are "similarly situated" under the ADEA and therefore entitled to proceed with a representative action in one trial. They claim that the "similarly situated" standard is to be broadly construed and does not require a showing of identical circumstances, and that they fit this definition as "victims of a common plan, policy and scheme of illegal discrimination by Svedala." In addition, they argue that the EEOC has statutory authority under the ADEA to bring suit on behalf of the plaintiff class without meeting the "similarly situated" requirement applicable to private suits. According to the plaintiffs, neither they nor the EEOC, as ADEA litigants, need comply with the class action requirements of Federal Rule of Civil Procedure 23. They further claim that joinder of their allegations into one action is proper under Rule 20(a). Finally, the plaintiffs argue that Svedala will not be prejudiced by one trial because (1) anecdotal testimony is admissible in a pattern or practice discrimination claim, and (2) severance would result in "a large duplication of effort, particularly in terms of the proof of the pattern or practice of age discrimination."

Before addressing the propriety of separate trials for the Appleton and Milwaukee plaintiffs, a brief discussion as to the type of action involved in this case is warranted. The ADEA incorporates by reference the enforcement provisions of the Fair Labor Standards Act ("FLSA"), including 29 U.S.C. § 216(b), which allows an employee to sue his or her employer "for and in behalf of himself or herself and other employees similarly situated." 29 U.S.C. § 626(b). See King v. General Elec. Co., 960 F.2d 617, 621 (7th Cir.1992); LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 289 (5th Cir.1975). "This procedure preempts the class action procedure under Federal Rule of Civil Procedure 23," which is the only type of representative action authorized under the Federal Rules; thus, Rule 23 opt-out and class certification requirements are inapplicable in ADEA cases, and parties may "opt-in" if similarly situated to the plaintiff. King at 921. See also Anson v. University of Texas Health Science Ctr., 962 F.2d 539, 540 (5th Cir.1992); LaChapelle at 289. Presumably, this also obviates the need to consider permissive joinder requirements under Rule 20(a) as, by definition, a representative action, whether brought under Rule 23 or otherwise, is mutually exclusive from a multiple-plaintiff action brought by joinder.¹ To proceed as a representative action under the ADEA, then, the plaintiffs need only show that they are "similarly situated," and not that their claims "arose out of the same transaction or occurrence" under Rule 20(a) or that they meet Rule 23(a) class action prerequisites. The "similarly situated" requirement, in turn, "is considerably less stringent than the requirement of Rule 23(b)(3) that common questions `predominate,'" Heagney v. European Am. Bank, 122 F.R.D. 125, 127 n. 2 (E.D.N.Y.1988), or, presumably, the Rule 20(a) requirement that claims "arise out of the same action or occurrence."

The EEOC, as plaintiff/intervenor, has also brought a representative action in this matter on behalf of the eleven individual plaintiffs as well as six additional parties. Again, the ADEA incorporates by reference the enforcement provisions of the FLSA, including 29 U.S.C. §§ 216(c) and 217, which allow the EEOC to bring suit on behalf of aggrieved parties. 29 U.S.C. § 626(b). See Glass v. IDS Fin. Serv., Inc., 778 F.Supp. 1029, 1081 (D.Minn.1991). Unlike a private representative suit, the EEOC's authority to bring such an action is not limited to circumstances where the plaintiffs are "similarly situated." Id. Nor is its authority compromised when it intervenes rather than bringing its own direct action. Id. Assuming that this statutory authority preempts the class action procedure of Rule 23 and the joinder requirements of Rule 20(a), the EEOC may proceed in this matter on behalf of the plaintiffs whether or not they are "similarly situated," common questions of law or fact "predominate," or claims "arise out of the same action or occurrence."

The private plaintiffs claim to have met the "similarly situated" standard by alleging pattern or practice age discrimination emanating from Svedala's Swedish parent corporation.² The defendants acknowledge the inter-unit similarity in the constructive and/or actual discharge of plaintiffs at both the Appleton and Milwaukee facilities for purposes of conducting two separate representative-action trials under the ADEA; they argue, however, that the absence of intra-unit similarity renders a single trial inappropriate. In the Seventh Circuit, "plaintiffs who raise a pattern or practice class claim have as their initial burden the task of demonstrating that unlawful discrimination has been the regular policy of the employer, i.e., that `discrimination was the company's standard operating procedure — the regular rather than the unusual practice.'" Coates v. Johnson & Johnson, 756 F.2d 524,...