Grayson v. K-Mart Corp.

• Decision Date: 22 February 1994
• Docket Number: Civ. No. 1:92-cv-141-JEC.
• Citation: 849 F. Supp. 785
• Parties: Mercer David GRAYSON, Ronald L. Braley, Tony M. Arrington, Kenneth C. Bell, Edward J. Kondrad, James T. Mixon, David L. Navickas, Ricky D. Sallee, James L. Steadman, Mitchell B. Taper, and John D. Thompson, Plaintiffs, v. K-MART CORPORATION, Defendant.
• Court: U.S. District Court — Northern District of Georgia

849 F. Supp. 785

Mercer David GRAYSON, Ronald L. Braley, Tony M. Arrington, Kenneth C. Bell, Edward J. Kondrad, James T. Mixon, David L. Navickas, Ricky D. Sallee, James L. Steadman, Mitchell B. Taper, and John D. Thompson, Plaintiffs, v. K-MART CORPORATION, Defendant.

Civ. No. 1:92-cv-141-JEC.

United States District Court, N.D. Georgia, Atlanta Division.

February 22, 1994.

Carl H. Hodges, Morrow, GA, Daniel M. Klein, James L. Ford, Atlanta, GA, James J. Dalton, II, Morrow, GA, for plaintiffs.

James H. Coil, III, Walter E. Johnson, Atlanta, GA, for defendant.

ORDER

CARNES, District Judge.

This case is presently before the Court on defendant's Motions for Partial Summary Judgment 54-1, 55-1, 56-1, 57-1, 58-1, 59-1, 60-1, 61-1, 62-1, 63-1, 64-1, defendant's Motion for Severance of each plaintiff's case 65-1, defendant's Motion for Severance of state and federal claims 65-3, defendant's Motion to Strike 99-1, and defendant's Motion to Strike 105-1. The Court has reviewed the record and the arguments of the parties and, for the reasons set out below, concludes that defendant's motions should be granted in part and denied in part without prejudice to be refiled, as appropriate, within thirty (30) days of this order.

BACKGROUND

The eleven plaintiffs in this case are former store managers of defendant K Mart Corporation ("K Mart") who are, or were, employed in defendant's stores located in Alabama, Florida, Georgia, and North Carolina. Each plaintiff seeks relief for alleged age discrimination, pursuant to the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq. ("ADEA"). Each plaintiff also seeks relief for common law intentional infliction of emotional distress, pursuant to the applicable law of each plaintiff's home state.

Plaintiffs have alleged that each plaintiff was demoted by defendant due to the respective plaintiff's ages at the time of their demotions. In support of their claim, plaintiffs point to evidence they believe indicates that each plaintiff was subjected to such adverse action as part of a "pattern and practice" of illegal treatment of K Mart's older employees at all levels. All the plaintiffs were over forty years of age at the time of the demotions and, thus, protected by the ADEA. Notwithstanding plaintiffs' allegations, defendant alleges that the employment decisions made regarding each plaintiff were made based upon the individual circumstances of each plaintiff's employment record and job performance. Plaintiffs, in turn, cite to evidence which tends to indicate that defendant's stated reasons for each employment decision are mere pretext.

Although the Complaint purported to include the claims of each of the eleven plaintiffs "and other similarly situated persons," (Compl. at ¶ 92), it was not brought as a class action, and plaintiffs have made no effort to seek representative status or to certify any proposed class. Prior to bringing the instant action, each plaintiff filed an individual complaint with the Equal Employment Opportunity Commission office in his respective state. At the time of the adverse employment actions complained of, pursuant to K Mart's management structure, each plaintiff reported to a district manager and regional manager located in each plaintiff's home state.¹ Each regional manager in turn reported to John Valenti in Troy, Michigan, who was in charge of the operations of some eight hundred K Mart stores in the Southern states.

DISCUSSION

I. Introduction.

Defendant has moved the Court to sever the claims of the various plaintiffs in this case, pursuant to FED.R.CIV.P. 21 and 42(b) ("Rule 21" and "Rule 42(b)"). Defendant argues that plaintiffs' cases were improperly joined and that defendant is entitled to have the claims severed under Rule 21 and, in the alternative, that, even if plaintiffs cases are properly joined, sufficient reason exists to sever each plaintiff's case for trial under Rule 42(b). Plaintiffs argue in response that joinder was proper under FED.R.CIV.P. 20 ("Rule 20") because their claims arose out a common "transaction, occurrence, or series of transactions or occurrences" and because there are "questions of law or fact common to all" the plaintiffs. Id. Plaintiffs further argue that any prejudice or confusion that may exist, due to their decision to join their claims under Rule 20, can be eliminated through proper instruction to the jury, thus eliminating any justification to sever under Rule 42(b). For the reasons discussed below, the Court concludes that, under the circumstances of these cases, defendant has presented the better argument and that defendant's motion to sever should be granted on either of its proposed alternative grounds.

II. Misjoinder.

In order for plaintiffs' cases to be properly joined, they must satisfy the prerequisites of FED.R.CIV.P. 20(a) ("Rule 20(a)"). "The rule states two requirements for proper joinder: (1) there must be a right to relief arising out of the same transaction occurrence or series of transactions or occurrences; and (2) there must be a question of law or fact common to all of the plaintiffs which will arise in the action. Both these requirements must be satisfied." Smith v. North Am. Rockwell Corp., 50 F.R.D. 515, 522 (N.D.Okla.1970) (hereinafter "Rockwell"). "In ascertaining whether a particular factual situation constitutes a single transaction or occurrence for purposes of Rule 20, a case by case approach is generally pursued. No hard and fast rules have been established under the rule." Mosley v. General Motors Corp., 497 F.2d 1330, 1333 (8th Cir.1974) (citation omitted). The Court finds, based upon the factual situation presented by these cases, that plaintiffs' cases satisfy neither requirement for joinder under Rule 20(a) and, thus, that their claims have been misjoined.

A. Common Transaction or Occurrence.

Defendant argues that plaintiffs' cases arise from distinct and unrelated employment actions taken by various management employees in the course of their job responsibilities. Accordingly, under defendant's theory of the cases, each adverse employment decision was a separate transaction or occurrence, not part of some unified series of transactions or occurrences, and not amenable to joinder under Rule 20(a). Plaintiffs argue vigorously that their pattern and practice evidence establishes that each plaintiff's demotion was part of an organized course of conduct by K Mart and, thus, that each demotion was but one transaction or occurrence within a common series of transactions or occurrences. Under plaintiffs' theory of their respective cases, the first prong of Rule 20(a) has been satisfied. While the Court finds the facts of these cases to present a somewhat close question, it concludes that the "common transaction or occurrence" requirement of Rule 20(a) has not been satisfied.

In support of their theory of the cases, plaintiffs have directed the Court's attention to evidence they believe establishes the common transaction requirement under Rule 20(a). This evidence may be categorized into three general types: (1) evidence of motive to discriminate against older employees; (2) anecdotal evidence of age bias within defendant's organization; and (3) statistical evidence of age bias. Plaintiffs paint the picture of a hostile corporate culture for older store managers. Plaintiffs have not, however, directed this Court's attention to any discrete program or procedure employed by K Mart that affected each of the plaintiffs in this litigation.² Absent some causal link between a common and identifiable wrongful act on the part of the defendant and the adverse action taken with respect to each plaintiff, the first prong of Rule 20(a) is not satisfied.

Plaintiffs' "motive" evidence relates to defendant's admitted need to improve its profitability during the same time period within which plaintiffs were demoted. Plaintiffs combine evidence that defendant was seeking to improve its profitability and evidence that older employees, on average, made higher salaries to arrive at the purported motive to act more harshly with respect to older employees. Plaintiffs allege that K Mart's demands of improved profitability put increased pressure on regional, district, and store managers to cut costs in order to improve profits. Plaintiffs assert that the need to cut costs caused these managers to make employment decisions based upon the relative costs of retaining one employee over another. In making this argument, however, plaintiffs ignore the fact that each employment decision was made by different managers within the company. The fact that all these managers may have been feeling the same pressure to improve profitability does not mean that all these decisions constitute one unified transaction or occurrence or series thereof.

The anecdotal evidence of discrimination consists of statements made by various K Mart managers at all levels, which plaintiffs assert establishes the existence of a company-wide policy of age bias. Plaintiffs rely in part on public statements made by defendant's chairman, Joseph Antonini, regarding the company's "renewal" and regarding the relatively young age of K Mart's management team to support the existence of such a policy. Plaintiffs also present the anecdotal testimony of various present and former K Mart employees recounting conversations they have had with managers at various levels in which pejorative or derogatory statements were made regarding the age and job performance of other K Mart employees. Assuming, without deciding, that plaintiffs' evidence establishes a general hostility toward older employees, the Court fails to see how such hostility transforms the decisions of the various managers with respect to each of the plaintiffs into one logical transaction or occurrence.

Plaintiffs' reliance on defendant's alleged general bias toward store managers over forty to support joinder of their cases is misplaced, as "litigation of even...