Opinion
Civil No. 02-4756 (JRT/FLN).
July 1, 2003.
David Shulman, Shulman Dornbos, Minneapolis, MN, Attorney for Plaintiff.
Beverly J. Wolfe, Assistant County Attorney, and Sara E. Wahl, Senior Assistant County Attorney, Hennepin County Attorney's Office, Minneapolis, MN, Attorneys for Defendant.
ORDER DENYING DEFENDANT'S MOTION TO SEVER OR FOR SEPARATE TRIALS
Plaintiffs, current and former employees of the Hennepin County Medical Center ("HCMC"), filed this action alleging racial discrimination in employment. Defendant has moved to sever the case or, in the alternative, for separate trials. For the reasons discussed below, the motion is denied.
BACKGROUND
HCMC is a comprehensive academic medical center and public hospital in Minneapolis. About 3,800 people are employed at HCMC in more than 250 job classifications. Plaintiffs work (or worked) in various departments, including medical records, admissions, information technology, and specialty clinics such as the cardiac care unit.
Plaintiffs filed this action in Hennepin County District Court in November 2002, and defendant promptly removed to this Court. Plaintiffs bring this action under the Minnesota Human Rights Act ("MHRA") and 42 U.S.C. § 1981, and allege HCMC has developed a body of discriminatory employment practices that make it nearly impossible for Black employees to advance within the institution. Plaintiffs claim that as a result of this pattern and practice of discrimination, individual supervisors and employees discriminate against plaintiffs in a variety of situations. For example, nine plaintiffs make allegations of a hostile work environment, six plaintiffs claim they were subject to harsher discipline or unfair performance reviews, and several plaintiffs make claims of retaliation and discrimination in pay or discriminatory promotions or demotion policies.
Plaintiffs use the term "Black" because one plaintiff is a legal alien. For purposes of consistency and to avoid confusion or the use of duplicative terms, the Court adopts plaintiffs' practice for this motion.
Defendant argues that plaintiffs' claims lack commonality so the requirements of joinder under Federal Rule of Civil Procedure Rule 20(a) are not met. Defendant therefore requests that the individual plaintiffs be severed pursuant to Federal Rule of Civil Procedure 21 or, in the alternative, that separate trials be ordered.
ANALYSIS
I. Motion to Sever
Federal Rule of Civil Procedure 20(a) provides:
All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action.
If plaintiffs are joined improperly, the remedy is found in Federal Rule of Civil Procedure 21, which provides in part: "Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just." Even if the requirements of 20(a) are met, the Court may sever the trial in order to avoid prejudice. Fed.R.Civ.P. 20(b).
Rule 20(a) requires plaintiffs to show both that (1) their claims arise out of the same transaction or occurrence and (2) a question of law or fact common to all joined parties will arise. In Mosely v. General Motors Corp., 497 F.2d 1330, 1332 (8th Cir. 1974), the Court noted that the purpose of Rule 20 "is to promote trial convenience and expedite the final determination of disputes thereby preventing multiple lawsuits." The transaction and common question requirements of the rule are "flexible concepts" to implement its purpose, and should be "read as broadly as possible whenever doing so is likely to promote judicial economy." 7 C. Wright, A. Miller M. Kane, Federal Practice and Procedure § 1653 (3d ed. 2001) ("Wright Miller"). The Rule permits all reasonably related claims for relief by or against different parties to be tried in a single proceeding, and absolute identity of all events is unnecessary. Mosley, 497 F.2d at 1333. See Wright Miller § 1653, at 383.
A. Same transaction or occurrence
"In ascertaining whether a particular factual situation constitutes a single transaction or occurrence . . . a case by case approach is generally pursued." Mosley, 497 F.2d at 1333. "The `transaction or occurrence' requirement . . . includes all logically related events." Travelers Ins. Co. v. Intraco, Inc., 163 F.R.D. 554, 556 (S.D. Iowa 1995) (citing Mosley, 497 F.2d at 1333; McLernon v. Source Int'l, Inc., 701 F. Supp. 1422, 1425 (E.D. Wis. 1988); Dougherty v. Mieczkowski, 661 F. Supp. 267, 278 (Del. 1987) (additional citations omitted)). The test "mirrors the one applied under Federal Rule of Civil Procedure 13(a), under which `Transaction' is a word of flexible meaning." Miller v. Hygrade Food Products Corp., 202 F.R.D. 142, 144 (E.D. Penn. 2001).
A policy or pattern and practice of discrimination can satisfy the "same transaction or occurrence" requirement. For example, in Mosley, an employment discrimination case involving ten plaintiffs, the Eighth Circuit noted that "a company-wide policy purportedly designed to discriminate against blacks in employment arises out of the same transaction or occurrence." 497 F.2d at 1333-34. More recently, in Miller v. Hygrade Food Products Corp., nine plaintiffs filed a consolidated action claiming discrimination under Title VII. 202 F.R.D. 142 (E.D. Penn. 2001). The Miller Court found the transaction or occurrence prerequisite satisfied where "[a]ll of the specific instances of discrimination flow from [a] general policy, or pattern and practice, and therefore are logically related and arise out of the same series of transactions or occurrences." Id. at 144. See also A.M. Alexander v. Fulton County Georgia, 207 F.3d 1303, 1323-24 (11th Cir. 2000) (determining that plaintiffs who brought suit for allegedly discriminatory employment decisions in a wide range of areas met same transaction or occurrence test).
However, it is not always the case that multiple-plaintiff employment discrimination claims satisfy the requirements of Rule 20(a). For example, in Maclin v. Northern Telecom, Inc., No. 95-7485, 1996 WL 495558 (N.D. Ill. Aug. 28, 1996), the court granted defendant's motion to sever because plaintiffs presented no evidence that the discrimination involved the same decision makers, the conduct occurred at different times, and the plaintiffs were in different departments. The court distinguished Mosley by noting the absence of a "company-wide policy" in the Maclin case. Id. Similarly, in Bailey v. Northern Trust Co., 196 F.R.D. 513 (N.D. 11. 2000), the Court held that joinder of employee's claims was improper where there was no allegation that the defendant had a common discriminatory practice or policy. Although the five female African American plaintiffs in Bailey claimed violations of section 1981 and Title VII, there were no allegations that the same decision makers were involved in the alleged discriminatory decisions. Id. at 516. The plaintiffs in both Bailey and Madison alleged varied types of adverse employment actions including unequal pay, retaliation, unfair discipline, wrongful termination, and denial of promotions.
In this case, plaintiffs allege that they were injured by the Hennepin County's "company-wide policy" of discriminating against Black employees. Plaintiffs have brought claims against Hennepin County under 42 U.S.C. § 1981, and a necessary component of the § 1981 claims is proving that Hennepin County had a custom or policy of discriminating against Black employees. Plaintiffs allege that HCMC's "nearly all-white management team" has developed policies that make it nearly impossible for Black employees to advance in HCMC. The Court notes defendant's argument that plaintiffs do not specifically allege which discriminatory policies caused plaintiffs' injuries. The Court is also cognizant of the absence of a specifically identified common decision-maker. Nonetheless, plaintiffs' allegation of a custom or policy is sufficient to satisfy the first requirement of Rule 20(a) at this early stage of the proceedings.
The Court notes that the issue of misjoinder can be raised sua sponte, see United States v. Certain Accounts, Together With all Monies on Deposit Therein, 795 F. Supp. 391, 399 (S.D. Fla. 1992), and can be addressed at later stages of the proceedings.
B. Common questions of law or fact
"The second prong of Rule 20 does not require that all questions of law and fact raised by the dispute be common, but only that some question of law or fact be common to all parties." A.M. Alexander, 207 F.3d at 1324. The Rule provides little guidance as to what qualifies as "common," and courts have turned to the commonality requirement under Federal Rule of Civil Procedure 23(a) for an analogy. Mosley, 497 F.2d at 1334. Rule 23(a) provides a "very low threshold" with plaintiffs only needing to share one common question of law or fact. Barnes v. American Tobacco Co., 161 F.3d 127, 140, 141 n. 15 (3rd Cir. 1998) (citation omitted).
In employment discrimination cases, "courts have found that the discriminatory character of a defendant's conduct is basic to the class, and the fact that the individual class members may have suffered different effects from the alleged discrimination is immaterial for the purposes of this prerequisite." Mosley, 497 F.2d at 1334 (citations omitted). See also Blesedell v. Mobile Oil Co., 708 F. Supp. 1408, 1422 (S.D.N.Y. 1989) (noting that "[i]n employment discrimination cases under Title VII, courts have found that the discriminatory character of a defendant's conduct is common to each plaintiff's recovery"); cf. Grayson v. K Mart Corp., 79 F.3d 1095, 1095-96 (11th Cir. 1996) (suggesting that "a unified policy, plan, or scheme of discrimination" can satisfy Rule 20's commonality requirement).
However, it is not enough to simply allege the same general theory — for example, simply alleging "race discrimination" without more, will not satisfy this requirement. Bailey v. Northern Trust Co., 196 F.R.D. 513, 517 (N.D. Ill. 2000) (citations omitted). Where the only relationship is the fact that all plaintiffs work for one employer and all the claims are based on race discrimination, joinder is inappropriate. Id. See also A.M. Alexander, 207 F.3d at 1324 (discussing second requirement of Rule 20(a): "the prejudicial effects of other witnesses' alleged discriminatory experiences may outweigh their probative value where, for example, the alleged discrimination occurs during different time periods, see, e.g., Annis v. County of Westchester, 136 F.3d 239, 247 (2d Cir. 1998); Williams v. The Nashville Network, 132 F.3d 1123, 1130 (6th Cir. 1997), different supervisors make the challenged decisions, see, e.g., Annis, 136 F.3d at 24647; Williams, 132 F.3d at 1130; Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1221 (5th Cir. 1995), or the alleged discrimination happens at geographically removed places, see, e.g., Williams, 132 F.3d at 1130; Mooney, 54 F.3d at 1221.") (emphases added).
Although the allegations in the complaint present many different effects of the alleged discriminatory policy, plaintiffs have alleged injuries stemming from a common policy. Plaintiffs' right to relief, at least as to plaintiffs' section 1981 claims, depends upon the ability to demonstrate that each plaintiff was injured by a discriminatory policy or custom. This presents a common question of law, and therefore the second requisite of Rule 20(a) is met. See, e.g., Geir v. Educational Service Unit No. 16, 144 F.R.D. 680, 689 (Neb. 1992) (finding a question of law common to all plaintiffs even though alleged abuse took different forms for different plaintiffs).
The Court therefore will not order severance at this time. The Court notes, however, that it might be appropriate to revisit this issue after discovery, or perhaps after dispositive motions have been decided. The Court is mindful that a single trial with numerous plaintiffs poses a distinct risk of prejudice to defendant and potential difficulties for the jury. The Court is equally mindful, however, of the potential expense to plaintiffs and the Court of having fifteen separate trials.
II. Separate trials
The Court, in its discretion, may order a separate trial "in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy." Fed.R.Civ.P. 42(b). At this time, the Court also denies defendant's request for separate trials. It is simply too early to determine whether the claims should be severed for trial. Such a determination is more appropriately made when the Court can determine which issues, if any, will go to trial. See Miller, 202 F.R.D. at 145. See also Berry v. Illinois Dept. of Human Services, No. 00-5538, 2001 WL 111035 (N.D. Ill. Feb. 2, 2001) (no need to resolve request for separate trials until post-discovery); Ramirez v. Brazo's Holding Co., No. 94-2396-GTV, 1994 WL 719215 (Kan. Dec. 23, 1994) (same).
ORDER
Based upon the foregoing, the submissions of the parties, the arguments of counsel and the entire file and proceedings herein, IT IS HEREBY ORDERED that defendant's motion to sever or in the alternative for separate trials [Docket Nos. 13 and 14] is DENIED.