Phillip N. Lockhart, Charles B. Wilson, James Lowery, James P. Durham and Thomas Bradley v. Westinghouse Credit Corporation

GARTH, Circuit Judge,

dissenting:

Apart from the conclusion which it reaches — the majority affirms the jury verdict in favor of the plaintiff — I would reverse that judgment — the majority analysis does not differ substantially from mine.

The majority agrees with me that this action could not be maintained by plaintiffs Wilson and Bradley, by reason of their failure to file timely charges with the EEOC pursuant to 29 U.S.C. § 626 (d). Maj. op. at 53. It also agrees with me that joinder of these plaintiffs was improper under § 16(b) of the Fair Labor Standards Act (“FLSA”), maj. op. at 53-54, and that joinder was also improper under Fed. R.Civ.P. 20(a). Maj. op. at 53 n. 11.

The majority, as do I, concludes that Judge Teitelbaum erred when he instructed the jury “[i]n a moment I will tell you what [each] plaintiff must prove in order to establish a presumption that the defendant violated the Age Discrimination in Employment Act.” Maj. op. at 56 (citing A. 1204) (emphasis added).

Finally, the majority agrees with me that the district court erred in refusing to grant Westinghouse’s motion for a directed ver-diet or a judgment notwithstanding the verdict on the issue of willfulness because the record contains utterly no evidence establishing willfulness. Maj. op. at 59.

Given this litany of error, which all members of the panel are unanimous in recognizing, and given our standard of reviewing such error, i.e. that error is harmless only if it is highly probable 1 that the error did not affect the outcome of the case, McQueeney v. Wilmington Trust Co., 779 F.2d 916, 917 (3d Cir.1985), I cannot understand how the majority can hold these erroneous rulings, individually but particularly in combination, to be harmless.

Moreover, the majority does not discuss, and therefore its position is unknown, regarding the focal point of Westinghouse’s defense — the McKinsey Report. This Report was the predicate for the plaintiffs’ theory that Westinghouse subscribed to a plan calling for the elimination of its older middle management employees. Westinghouse argued that Lockhart and Bradley could not have been discharged as a result of the McKinsey Report because the Report was filed long after they were discharged. 2 Westinghouse also pointed out that with respect to the other plaintiffs, only Durham could have been affected by the principal recommendation of the Report — the consolidation of the financial services and industrial equipment groups— and that “affect” had nothing to do with Durham’s age. The majority opinion simply does not address these contentions as they bear upon the issues on appeal.

Furthermore, the majority opinion blithely dismisses Westinghouse’s complaints about the actions taken by Judge Teitel-baum in limiting Westinghouse’s cross-examination of the plaintiffs’ principal wit *60 ness, Donald French. French’s testimony was the most damaging piece of evidence presented by the plaintiffs against Westinghouse. The record is extremely murky regarding the district court’s restriction of Westinghouse’s cross-examination. Thus, the majority’s position is highly questionable when it holds that the limitation of French’s cross-examination applied only to irrelevant testimony.

With this many critical and substantive errors pervading the entire course of this case, I cannot say that Westinghouse had a fair trial. Certainly, I could not hold that Westinghouse had received substantial justice, because it is clear to me, as I would have hoped it would be clear to the other panel members, that these errors affected Westinghouse’s substantial rights. See Fed.R.Civ.P. 61. 3 Moreover, in light of these errors, particularly the misjoinder of plaintiffs, the majority of this panel cannot have a sure conviction that the errors which they have identified, did not prejudice Westinghouse. See United States v. Grayson, 795 F.2d 278, 290 (3d Cir.1986). In my opinion, the judgment in favor of Lockhart and Durham must be reversed. I dissent.

I.

Perhaps the most critical error made by the district court, and recognized here by the entire panel, was the district court’s ruling which permitted over Westinghouse’s strenuous objection, three other individuals to be joined in this suit: Messrs. Bradley, Wilson and Durham. Two of these three (Bradley and Wilson) had failed to file timely charges with the EEOC. The district court nevertheless permitted all three to be joined holding that they were “similarly situated,” and that thus joinder could be effected under FLSA § 16(b), 29 U.S.C. § 216 (b). Alternatively, the district court held that Federal Rule of Civil Procedure 20(a) sanctioned such permissive join-der. The district court erred in each of these rulings and those errors have been pointed out in the majority opinion. Maj. op. at 53, 53-54, 57, 59.

First and foremost, the majority agrees with me that a decision of this court, binding on the district courts, is directly contrary to the FLSA § 16(b) ruling made in this case. Lusardi v. Lechner, 855 F.2d 1062 (3d Cir.1988), unequivocally establishes the principle that the failure of plaintiffs seeking joinder to file a timely charge with the EEOC bars the joinder of those plaintiffs, absent classwide charges in the EEOC filing of the named plaintiff (in this case Lockhart). That is the precise situation in this case. Indeed, every circuit that had considered this question even before our Lusardi decision had been filed, reached the same conclusion. See Kloos v. Carter Day Co., 799 F.2d 397, 402 (8th Cir.1986); Naton v. Bank of California, 649 F.2d 691 (9th Cir.1981); Mistretta v. Sandia Corp., 639 F.2d 588, 594-5 (10th Cir.1980); McCorstin v. U.S. Steel Corp., 621 F.2d 749, 755-56 (5th Cir.1980). Not only was joinder improper under § 16(b), but it was not available under Fed.R.Civ.P. 20(a), as the district court ruled.

Fed.R.Civ.P. 20(a) permits joinder if the plaintiffs assert rights arising out of the same transaction and if any question of law or fact common to all plaintiffs will arise in the action. However, as the majority opinion properly holds (Maj. op. at 53, n. 11), neither Bradley nor Wilson could have been joined pursuant to this Rule since neither had fulfilled the administrative requirement of filing a timely charge with the EEOC.

Moreover, even if Lusardi was not the law in this circuit, the district court’s join-der of the additional plaintiffs could not be *61 sustained. The majority opinion discusses and finds favor with Plummer v. General Electric, 93 F.R.D. 311 (E.D.Pa.1981). I suggest, however, that the majority has misread that case. The majority opinion has attempted to equate the situation in the present case with the situation presented in Plummer , although it acknowledges that because of the failure of the additional plaintiffs here to file timely charges with the EEOC, joinder could not have been permitted even under Plummer. 4

In Plummer , the district court was confronted with a motion to permit nine plaintiffs to join the Plummer action. The district court allowed the joinder of five ADEA plaintiffs all of whom worked in the same department, the same division and in the same location. However, the district court refused to allow the joinder of four other ADEA plaintiffs who were former employees of General Electric but who worked in various other departments and divisions. The district court in Plummer noted: (1) that because they were in various departments and divisions it was difficult to see how the named plaintiff, Plum-mer, would adequately represent the other defendants; and (2) the defenses raised by General Electric would turn on the particular employment decisions of particular and different managers. Plummer, 93 F.R.D. at 312 .

The circumstances of the additional plaintiffs in the present case are more nearly identical to the plaintiffs who were denied joinder in the district court in Plummer . Here, the plaintiffs are all from different divisions of the company. 5 They each reported to different managers and they were all from different areas of the country. Indeed, Lockhart worked in Pittsburgh, Pennsylvania; Durham in Atlanta, Georgia; Wilson in Jacksonville, Florida; and Bradley in Livonia, Michigan. While Lockhart and Bradley were discharged by the same regional manager, Durham and Wilson were each discharged by a different individual. Thus, while Durham filed a timely charge with EEOC, he nevertheless did not satisfy the “similarity” requirements of FLSA § 16(b) even as construed by Plummer . Accordingly, the district court should not have permitted Durham to join Lockhart’s action.

Despite these divergent circumstances, the plaintiffs argue that they were properly joined by a common bond as victims of the McKinsey Report. This was a Report prepared by a management consulting firm which recommended the consolidation of two divisions within Westinghouse. This argument simply does not fly. McKinsey was hired to investigate management at Westinghouse in May 1983. (A. 667). Lockhart was discharged on May 3, 1983 and Bradley on June 28, 1983, well before McKinsey had finished its inquiries and report. (A. 669-70). The consolidation of the financial services group and the industrial equipment group, the principal recommendation of the McKinsey Report, occurred in January 1984. Wilson was terminated almost a year later on December 4, 1984. Westinghouse concedes that Durham was let go as a result of the recommendations of the McKinsey Report, but not because of his age. As I have just pointed out, however, Durham was improperly joined.

The majority opinion, at footnote 9, attempts to explain the relevance of the *62 McKinsey Report to Lockhart’s discharge even though Lockhart was terminated months before the report was finished and filed. Nevertheless, the majority opinion claims that because Westinghouse was undergoing some corporate restructuring pri- or to the authorization of the McKinsey Report, a jury could conclude that Westinghouse’s policy of terminating older employees was independent of the McKinsey Report’s ultimate recommendations. Maj. op. at 50 n. 9. First, the record does not reveal how the consolidation of several branch offices into the Pittsburgh office can establish a nationwide plan or practice of discrimination such as the one alleged by the plaintiffs here. Second, nowhere does Lockhart charge that the consolidation which occurred in Pittsburgh, marked the beginning of the company’s allegedly discriminatory policy. Instead, as I have pointed out, Lockhart himself relies exclusively, on the McKinsey Report as the triggering event for his discharge.

Not only does the simple fact of timing rebut the plaintiffs’ argument that they were all victims of the McKinsey Report, but Westinghouse offered individualized explanations for the terminations of Lock-hart, Bradley and Wilson. Lockhart was fired as a result of a problematic audit of his areas of responsibility. Wilson was dismissed for poor sales performance. Bradley was laid off when two district offices were combined into one statewide office — a consolidation which took place in June, 1983. The plaintiffs do not point to any evidence in the record which indicates that this consolidation resulted from the McKinsey recommendations.

It is true that this court’s Lusardi decision to which I have earlier adverted, was filed after the district court erroneously permitted joinder in this case. However, in my view, the district court’s ruling and the consequences to which it led, i.e. the testimony of party witnesses, who, absent the improper joinder, could not have testified to the circumstances of their dismissal, constituted, without more, reversible error. When linked with the other errors which we have all acknowledged, and which I have listed at the outset of this dissent, I can only conclude that the majority has failed to appreciate the injustice these rulings have dealt to the defendant. More importantly, the majority in affirming the verdict has departed from our established McQueeney and Grayson standard of review by holding such error to be harmless.

II.

Given the distinct lack of commonality or similarity amongst these plaintiffs, it is clear to me, as I had hoped it would be to the majority, that the district court both erred and abused its discretion in permitting their joinder. Moreover, the error in joining the additional plaintiffs was compounded when their otherwise impermissible testimony was heard by the jury. When numerous plaintiffs all level the same discrimination charge against their employer, a “spillover” effect on the jury is inevitable. It was this “spillover” that severely prejudiced Westinghouse, as any fair reading of the record reveals.

The majority opinion at 53-54, apparently reads my reaction to the joinder of Wilson and Bradley as an assertion on my part that Wilson and Bradley were joined only to buttress the claims of Lockhart and Durham. Nothing could be further from the truth. My point is that Wilson and Bradley should never have been joined as plaintiffs and that their joinder unfairly prejudiced the defendant Westinghouse. This is so, even though Wilson and Bradley may have had legitimate claims of their own to assert. In this regard, I do not lose sight of the fact that: 1) both members of the majority agree with me that the joinder of Wilson and Bradley was improper {see maj. op. at 53-54); and 2) despite Wilson and Bradley’s “independent” age claims, the jury found against them. Thus, despite the majority opinion’s overbroad assertion that my analysis would provide the basis for reversal in every case where plaintiffs were improperly joined, I have advocated reversal here only because of the cumulative errors committed by the district court and the severe prejudice visited upon Westinghouse as a result of the joinder of multi- *63 pie plaintiffs in this case where the circumstances of each of their discharges were so completely different.

Additionally, the error of the district court was aggravated by its failure, despite Westinghouse’s request, to provide the jury with a charge that the jury must find that Westinghouse engaged in a pattern or practice of discrimination as alleged in the amended complaint. Indeed, Westinghouse proffered a specific interrogatory designed to elicit this specific and essential jury finding, and this too was denied. Brief of Westinghouse at 4 n. 1; Reply Brief at 1-2.

Thus, the joinder error of the district court became even more harmful when it was compounded by the district court’s failure, despite Westinghouse’s request, to charge the jury that it must find that Westinghouse engaged in a pattern or practice of discrimination, or to provide an interrogatory requiring an explicit finding on this issue. 6 Indeed, the fact that the jury found for Westinghouse with respect to Bradley and Wilson, 7 but against Westinghouse as to Lockhart and Durham clearly indicates that the jury did not find a general pattern, plan, or practice of age discrimination.

III.

Not only were Bradley, Wilson and Durham permitted to testify as party witnesses when they were improperly joined as parties, but in addition, Owens and French, both former Westinghouse employees were permitted to relate to the jury the circumstances of their discharges as well. Notwithstanding the majority’s analysis on the admissibility of this testimony (an analysis with which I have great reservation) the fact remains that the jury heard the testimony of six individuals all testifying about the individual circumstances of their dismissals, when it should have heard from only one — Lockhart.

IY.

The district court, ignoring Westinghouse’s articulation of a legitimate non-discriminatory reason for its conduct — a reason which served to rebut the presumption accorded a prima facie case, nevertheless charged the jury:

In a moment I will tell you what [each] plaintiff must prove in order to establish a presumption that the defendant violated the Age Discrimination in Employment Act.

(A. 1204) (emphasis added).

The majority concedes that Judge Teitel-baum clearly erred in “mentioning the presumption after Westinghouse had already brought forth substantial evidence to rebut [the] presumption.” Maj. op. at 56. However, the majority holds in the face of the numerous acknowledged errors committed by the district court, that this error too, even when added to the other more egregious rulings of the district court, did not prejudice Westinghouse.

V.

Lastly, the panel was again unanimous in holding that the record did not contain sufficient evidence to warrant the jury’s finding of a willful ADEA violation. Thus, not only was Durham improperly joined as a party, but the evidence which the jury heard in support of Durham’s contentions of willful violations of the ADEA, had to have infected and tainted the record with respect to all of the issues.

The majority professes to be perplexed by my argument that evidence of willfulness pertaining to an improperly joined party had to have had a prejudicial effect on the entire case. Maj. op. at 58 n. 19. It is evident that I do not advocate the proliferation of trials as the majority suggests *64 that I do. What I do contend is that in this case, the cumulative errors committed by the district court rendered this particular trial unfair. Included among those errors was Durham’s misjoinder and his testimony (both as to discharge and willfulness) which as a result of his misjoinder, was heard by the jury.

If we consider the district court’s instruction on the issue of willfulness — an impermissible instruction because no evidence of willfulness appears in the record — in conjunction with all of the other evidence which should not have been heard had the district court properly ruled on the joinder question, it becomes more than highly probable, to the point of certainty, that individually, and combined, the district court’s errors affected the outcome of this case leading to the “sure conviction that the error[s] did” indeed prejudice Westinghouse. United States v. Grayson, 795 F.2d 278, 290 (3d Cir.1986).

VI.

The most egregious error committed by the district court and the one that infects the entire case was its ruling which allowed the joinder of Wilson, Bradley, and Durham, and therefore the testimony of the additional plaintiffs. This error, in my opinion, so tainted the trial proceedings, that without more, this case must be remanded for a new trial. Unfortunately, however, there is “more.”

I have catalogued the other district court errors, almost all of which are admitted by the majority opinion to be erroneous rulings. Given the sheer number of these erroneous rulings which this record presents, and the consequences that flow from them, there can be no question but that the substantial rights of Westinghouse were seriously affected, and substantial justice to Westinghouse was denied. See Fed.R.Civ.P. 61.

I therefore respectfully dissent from so much of the majority’s opinion which affirms the judgment of the district court. 8 I would vacate the entire district court judgment and remand this case for a new trial.

. High probability requires that the court have a sure conviction that the error did not prejudice the defendant. United States v. Grayson, 795 F.2d 278, 290 (3d Cir.1986). In the context of non-constitutional harmless error, the civil and criminal standards of review are no different. McQueeney v. Wilmington Trust Co., 779 F.2d 916, 927 (3d Cir.1985).

. I discuss the McKinsey Report with respect to Wilson and Durham, infra.

. Federal Rule of Civil Procedure 61, “Harmless Error" provides:

No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

(Emphasis added.)

. Significantly, the district court in Plummer did not expressly address the issue of EEOC filing. I assume, however, that all the putative Plummer plaintiffs had satisfied the EEOC filing requirement, because the Plummer Court specifically cited to Burgett v. Cudahy Co., 361 F.Supp. 617, 622 (D.Kan.1973), which was a case concerned with the necessity of a timely EEOC filing.

. The majority opinion, p. 52 n. 10, is of the view that because the plaintiffs were all part of the "Eastern Zone of the Financial Services Division” and because they all sued for damages for age discrimination, that they were "similarly situated” as defined by Plummer . The fact that the plaintiffs were "all under the supervision of the Eastern Zone Manager” has little bearing on the "similarly situated” requirement defined in Plummer . The “Eastern Zone” of Westinghouse Credit Corporation which embraces virtually one-half of the continent, is a far cry, in terms of similarity, from the Space Systems Division of General Electric which employed all of the joined plaintiffs in Plummer , in one plant. See 93 F.R.D. at 312 .

. The majority of this court, p. 57 n. 15, apparently disregards the plaintiff’s amended complaint which charges, as to each plaintiff, that Westinghouse had a "plan, pattern, or practice of unlawful discrimination in which the Defendant conspired to, and willfully did, terminate the plaintiff and other individuals similarly situated to him solely as a result of their age.” (Lockhart complaint If 16 (A.39), Wilson ¶ 22 (A.41), Lowery ¶ 30 (A.43), Durham ¶ 38 (A.46), Bradley ¶44 (A.48)).

. As Westinghouse argues, even though the jury returned verdicts against both Wilson and Bradley, this error was not harmless. The prejudice to WCC lay in the burden of presenting individualized defenses to four separate claims before one jury, and in the inherent prejudice, which is entailed by having the jury hear the circumstances of termination of multiple long-term employees.

. As I have stated in text, I join the majority in reversing so much of the district court judgment as holds that Westinghouse acted willfully in discharging Durham.