Grayson v. K Mart Corp.

• Decision Date: 09 April 1996
• Docket Number: Nos. 94-9257,94-9293,s. 94-9257
• Citation: 79 F.3d 1086
• Parties: 70 Fair Empl.Prac.Cas. (BNA) 770, 64 USLW 2707 Mercer David GRAYSON, Plaintiff-Appellee, Cross-Appellant, v. K MART CORPORATION, Defendant-Appellant, Cross-Appellee. Ronald L. BRALEY, Plaintiff-Appellee, Cross-Appellant, v. K MART CORPORATION, Defendant-Appellant, Cross-Appellee. Tony M. ARRINGTON, Plaintiff-Appellee, Cross-Appellant, v. K MART CORPORATION, Defendant-Appellant, Cross-Appellee. Ricky D. SALLEE, Plaintiff-Appellee, Cross-Appellant, v. K MART CORPORATION, Defendant-Appellant, Cross-Appellee. James L. STEADMAN, Plaintiff-Appellee, Cross-Appellant, v. K MART CORPORATION, Defendant-Appellant, Cross-Appellee. John D. THOMPSON, Plaintiff-Appellee, Cross-Appellant, v. K MART CORPORATION, Defendant-Appellant, Cross-Appellee. Obediah SCONIERS, et al., Movants, Carl Helton, Charles W. Kempton, James E. Taylor, Bob Williams, David Jack Wright, Plaintiffs-Appellees, v. K MART CORPORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1086

79 F.3d 1086

70 Fair Empl.Prac.Cas. (BNA) 770, 64 USLW 2707

Mercer David GRAYSON, Plaintiff-Appellee, Cross-Appellant, v. K MART CORPORATION, Defendant-Appellant, Cross-Appellee.

Ronald L. BRALEY, Plaintiff-Appellee, Cross-Appellant, v. K MART CORPORATION, Defendant-Appellant, Cross-Appellee.

Tony M. ARRINGTON, Plaintiff-Appellee, Cross-Appellant, v. K MART CORPORATION, Defendant-Appellant, Cross-Appellee.

Ricky D. SALLEE, Plaintiff-Appellee, Cross-Appellant, v. K MART CORPORATION, Defendant-Appellant, Cross-Appellee.

James L. STEADMAN, Plaintiff-Appellee, Cross-Appellant, v. K MART CORPORATION, Defendant-Appellant, Cross-Appellee.

John D. THOMPSON, Plaintiff-Appellee, Cross-Appellant, v. K MART CORPORATION, Defendant-Appellant, Cross-Appellee.

Obediah SCONIERS, et al., Movants,

Carl Helton, Charles W. Kempton, James E. Taylor, Bob

Williams, David Jack Wright, Plaintiffs-Appellees, v. K MART CORPORATION, Defendant-Appellant.

Nos. 94-9257, 94-9293.

United States Court of Appeals, Eleventh Circuit.

April 9, 1996.

James H. Coil, III, Edmund M. Kneisel, Walter E. Johnson, Kilpatrick & Cody, Atlanta, GA, for appellants.

Douglas S. McDowell, McGuiness & Williams, Washington, DC, for amicus.

Daniel M. Klein, Green, Buckley, Jones & McQueen, Atlanta, GA, James Lee Ford, Ford & Felton, Atlanta, GA, for appellees.

Appeals from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, Chief Judge, and DYER and GARTH ¹, Senior Circuit Judges.

GARTH, Senior Circuit Judge:

The plaintiffs in the Grayson and Helton actions (together "the plaintiffs") are store managers in K Mart's Southern Region who were demoted or terminated by K Mart during the period from 1990 to 1992. The plaintiffs allege that their demotions or terminations were motivated by age-discrimination in violation of the Age Discrimination in Employment Act of 1967. 29 U.S.C. § 621 et seq. (the "ADEA"). The Grayson action was commenced on January 17, 1992 before District Court Judge Julie Carnes in the Northern District of Georgia. The Helton action was commenced on October 29, 1992 before District Court Judge Marvin Shoob, also in the Northern District of Georgia.

Judge Shoob certified for interlocutory appeal, his July 21, 1994 Order allowing the creation of an ADEA opt-in class under 29 U.S.C. § 216(b). For the reasons stated infra, we will affirm Judge Shoob's July 21, 1994 Order insofar as it creates an opt-in joinder class, but we will reverse and remand for redetermination of the temporal scope of the class. We also will dismiss K Mart's appeal of Judge Carnes' order of October 28, 1994 which had dismissed the Grayson actions without prejudice. We do so because we lack appellate jurisdiction over an order

which we here hold to be non-final and hence, not appealable.

I. Background

K Mart's Southern Region covers approximately 700 stores in eighteen states, Puerto Rico, and the Virgin Islands. The Southern Region is subdivided into five "sub-regions," each of which is headed by a Region Manager. Each "sub-region" is divided into districts of about ten to sixteen stores, and each district has its own District Manager.

In 1987, when Joseph Antonini became President, CEO, and Chairman of K Mart, he began a program of company restructuring called the "Renewal Program," aimed at creating a "new image" for K Mart. The plaintiffs allege that as part of K Mart's "new image," Antonini sought more youthful store managers. This goal, the plaintiffs allege, was shared by other high-level managers, particularly Don Keeble, K Mart's director of nationwide store operations; Tom Watkins, K Mart's Senior Vice President of Store Operations; John Valenti, K Mart's Regional Vice President of the Southern Region; and Robert McAllister, Valenti's predecessor as the Southern Regional Vice President.

In early 1990, Watkins instructed Robert McAllister, Valenti's predecessor as the Southern Regional Vice President, to prepare a listing of all of the managers in K Mart's Southern Region who had been rated "Needs Improvement" in 1989. Each manager's age and pay were listed, as well as the action the company had taken or was planning to take with respect to that manager. In March of 1990, McAllister sent Watkins the requested chart. Each "Below Expectations" manager under the age of thirty-nine was scheduled to be re-appraised in the near future without explanation. Most of the managers around the age of forty were demoted. Six of the eight managers over the age of forty-five were slated for demotion.

Valenti became Southern Regional Vice President soon after this time. From 1990 through 1992, K Mart demoted 151 Southern Region Store Managers, and approximately 76 additional store managers resigned. Each of the Grayson and Helton plaintiffs received "Commendable" or "Competent" annual evaluations for the years preceding this period of time. Thereafter, they started receiving "Needs Improvement," "Below Expectations," or "Unsatisfactory" evaluations.

The plaintiffs allege that K Mart "built a case" or "built a file" against each store manager before demoting him. Specifically, the plaintiffs allege that when K Mart targeted an older store manager for demotion, it would relentlessly criticize him for matters that were consistently overlooked for younger managers; or K Mart would assign the targeted manager unachievable goals, only to criticize him when those goals were not reached. This "building a case" demotion process, the plaintiffs contend, was centrally planned, monitored, and coordinated.

K Mart denies that the demotions were motivated by age discrimination. K Mart alleges that each demotion decision was based on the individual performance of the store manager in question, as judged by the store's operating results, general physical appearance, and compliance with K Mart company policies. Further, K Mart argues that the plaintiffs have failed to produce any evidence to show that any evaluation about the operations of their stores was false or prepared for age-biased reasons. K Mart also argues that there is no evidence that younger managers were treated any differently from older managers. Indeed, according to K Mart, the average age of store managers and the average earnings of older store managers increased slightly in the three sub-regions where the plaintiffs were employed. K Mart also denies that the demotions were centrally planned, noting that with few exceptions, the plaintiffs were each demoted by different Region Managers.

On January 17, 1992, Mercer Grayson and ten other plaintiffs (the " Grayson " plaintiffs) from Alabama, Florida, Georgia, and North Carolina filed a complaint in the Northern District of Georgia, alleging that they had each been demoted or terminated within a few months after the end of K Mart's 1990 fiscal year based on age discrimination in violation of the ADEA. Each plaintiff also claimed intentional infliction of emotional distress under their respective state On October 29, 1992, Carl Helton and four other plaintiffs (the " Helton " plaintiffs) filed a similar complaint, also in the Northern District of Georgia, alleging that they had been demoted in violation of the ADEA during or after the end of K Mart's 1991 fiscal year. The Helton plaintiffs did not allege or suggest that their case should be treated as a class action. The Helton plaintiffs did not designate their case as being related to the Grayson case on the civil intake questionnaire, so the Helton case was assigned to a different judge: District Court Judge Marvin Shoob. ² The plaintiffs in both cases engaged in parallel discovery.

                laws.   In their complaint, the Grayson plaintiffs stated that they filed the action on behalf of "other employees or former employees who may be similarly situated."   This case was assigned to District Court Judge Julie Carnes
                

On February 16, 1993, K Mart moved for severance in the Helton case under Federal Rule of Civil Procedure 42(b), arguing that the claims of the five Helton plaintiffs were not properly joined under Federal Rule of Civil Procedure 20.

On March 17, 1993, after the end of the scheduled discovery period in Grayson, K Mart filed in the Grayson case, a (1) a motion for summary judgment with respect to the claims of each of the eleven plaintiffs; (2) a motion for severance under Rule 42(b), arguing that the claims of the eleven plaintiffs were not properly joined under Rule 20; and (3) a motion to transfer the claims of five plaintiffs who lived and worked in Florida and North Carolina to district courts in those states.

On September 30, 1993, Judge Shoob rejected K Mart's motion for severance in the Helton case.

Discovery was completed in both cases shortly after January 25, 1994.

On February 22, 1994, Judge Carnes granted K Mart's severance motion in the Grayson case, ruling that the claims of the eleven plaintiffs were not properly joined under Federal Rule of Civil Procedure 20 and that the claims should be severed into eleven separate cases under Federal Rule of Civil Procedure 42(b).

On March 1, 1994, after Judge Carnes had granted K Mart's severance motion, the Grayson plaintiffs withdrew their objections to transfer. At the same time, Judge Carnes issued a Transfer Order dated February 25, 1994.

On February 28, 1994, the Helton plaintiffs filed: (1) a motion seeking leave to amend their complaint to allege for the first time an ADEA "class action" under 29 U.S.C. § 216(b); (2) a motion for leave to amend the complaint to add that the action is brought on behalf of other similarly situated individuals; and (3) a motion for leave to send notice of the case to other "unnamed" potential class members to advise them that they could "opt-in" as plaintiffs in the case pursuant to 29 U.S.C. § 216(b).

K Mart opposed the Helton plaintiffs' motions and renewed its motion to sever the Helton claims among the five plaintiffs.

By Order filed July 21, 1994, Judge Shoob...