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

Before HIGGINBOTHAM, GARTH, MANSMANN and Circuit Judges.

OPINION OF THE COURT HIGGINBOTHAM, Jr., A. LEON Judge. Circuit appeal This is an from arising an action under Age Discrimination in Employ- amended, ment Act of as 29 U.S.C. (1982) 621 seq. (“ADEA”), et and the Fair § amended, Labor Standards Act of as seq. (1982) (“FLSA”). U.S.C. 201 et § The suit multiple plaintiffs, involved for- employees mer appellant-defendant, Corporation Credit (“WCC”), alleged who they were unlawfully ter- jobs minated from their because of their ages, and that their terminations were done in willful violation of the ADEA. returned verdicts in favor of two plaintiffs, additionally finding that WCC willfully had discriminated one Upon them. record, our review of the we find support insufficient evidence to jury’s verdict of willful discrimination. Ac- cordingly, portion we will vacate that the district judgment court’s order award- ing liquidated damages.

I. take no further action on charge; his he proceeded then on his own behalf. In effort to profitability, increase its an Lockhart commenced this suit April corporate WCC decided to undertake a re- 11, 1985, claiming organization. that he May engaged discharged WCC (the McKinsey Company, from his Inc. “McKin- with WCC on account of sey Group”), management consulting age, in 4(a)(1) violation of of the § firm, to assist that effort. After the ADEA,1 29 623(a)(1), U.S.C. 16(b) § § McKinsey Group released its report Jan- FLSA,2 216(b). 29 U.S.C. On De- § uary merged corporate its four 6, 1985, cember Lockhart filed a motion Equipment Financing, divisions—Industrial join parties pursuant additional to the opt- Services, Financing Financial Real Estate provision 16(b) class action Financing larger Business two —into FLSA. The sought motion to add James Capital bodies: Commercial Services and Durham,3 Wilson, Charles Thomas Financing. During process of restruc- Lowery and James on the basis that management positions turing, number of “similarly Lockhart, situated” to within WCC were eliminated. that each one was “terminated from his

Contemporaneous with WCC’s commis- employment age.” because of his Appel- sioning McKinsey Group, Phillip N. Appendix lant’s (“App.”) at 14-15. The Lockhart, employed who was in the Finan- district granted court the motion without cial Manager Services division as District prejudice right to WCC’s to challenge the Pittsburgh Office, of WCC’s was terminat- joinder upon completion of discovery. The position May 3, 1983, ed from his on osten- complaint alleged amended that WCC’ster- sibly of an unfavorable of his because audit part minations plan, pattern of a or years office. He was 58 old the time at practice age of unlawful in discrimination and employee had been an of WCC’s since conspired which willfully WCC termi- 21, 1983, July 1960. On Lockhart filed a nated plaintiff. each charge formal written Equal with the Em- discovery, At the close WCC moved ployment Opportunity Commission for summary judgment against Wilson, (“EEOC”), alleging that discrimi- Lowery on the basis that since nated him on the age basis of his they charges had to file failed with the because several WCC being branches were EEOC, and charge since Lockhart’s not did Office, Pittsburgh consolidated with the allege discrimination, class-based resulting management and the posi- new could opt 16(b).4 into the suit under being tion filled an employee § who granted The district court years was 34 the motion experi- old and who had less as to 1984, Lowery, concluding ence In September sought than Lockhart. that if he had the EEOC informed Lockhart charge, that it would to file his it own would have been provides 17, 1. The section February 3. Durham was terminated on from his in WCC’s Financial Services employer shall be unlawful an [i]t to fail Regional division as Manager Administrative in discharge any to ... hire or to individual or Atlanta, Georgia. years He was 50 old against any otherwise discriminate individual employed by time and been had WCC since respect compensation, with to his [or her] 1984, spring terms, In conditions, 1960. Durham filed a privileges employ- charge ment, formal written of discrimination with age. because of such individual's 4, 1984, 623(a)(1) the EEOC. On October (1982). the EEOC noti- § 29 U.S.C. fied him it that would take no further action reads, pertinent section in part, The charge; proceeded join Durham then Lockhart’s suit. damages resulting action to recover [a]n [for age may from discrimination] be maintained against any employer by any challenge right join ... one or more 4. WCC did not Durham’s employees for and in independently behalf himself or in Lockhart’s suit since he had employees similarly themselves and other requirement filing sit- fulfilled the administrative charge timely uated. his own of discrimination with 216(b) (1982). § U.S.C. the EEOC. judgment the time Lockhart filed his respect

time-barred jury’s n.o.v. with to the the EEOC.5 with verdicts favor of Lockhart and Durham. reviewing In the court’s denial of WCC’s remaining plain- The of the four cases motion, “we must determine whether the proceeded Answering special tiffs to trial. justifiable evidence and inferences most fa jury interrogatories, the returned a verdict prevailing vorable to the party any afford liability as to and found that WCC had rational basis for the verdict.” Anastasio discharging violated the ADEA in Lockhart Schering Corp., 701, (3d v. 838 F.2d Durham, and that WCC had not violat- Cir.1988). discharging ed the ADEA in Wilson and Bradley. The further found that The ADEA protects are individuals who WCC’s termination of Durham was in will- 40 and older from employment discrimina By agreement ful of the ADEA. violation upon age. tion based their See 29 U.S.C. parties, damages of the the issue of 631(a) (Supp. 1986). IV Under § submitted to the trial court. Based on the ADEA, plaintiff has the ultimate bur stipulation parties backpay as to proving den was the determina $197,885.83 damages, the court awarded discharge tive factor his or her from $102,381.69 backpay to Lockhart and in employment. Chipollini Spencer Gifts, backpay to Durham. The court then deter- Inc., (3d Cir.) (in banc), 814 F.2d $96,- mined that Lockhart was entitled to dismissed, 1052, 108 cert. 483 U.S. S.Ct. in frontpay, and that Durham was enti- (1987). Age 97 L.Ed.2d 815 need not be the $43,000 frontpay. Moreover, tled to factor, sole it but must have “made a dif respect jury’s finding to the of willful- ference in [employer’s] decision.” Id. ness, $102,- the court Durham awarded prevail can on his or her claim liquidated damages, equalling 381.69 in his by proffering specific direct evidence of backpay prescribed by award of as statute. discriminate, intent to usually but there is 626(b)(1982). total, See 29 U.S.C. “smoking gun” no evidence of intentional $293,885.83 court awarded to Lockhart and discrimination. See Gavalik v. Continen $247,763.38 Durham, plus their attor- (3d tal Cir.), Can 852-53 neys’ fees and costs. — denied, U.S. -, cert. 108 S.Ct. subsequently judgment WCC moved for (1987). 98 L.Ed.2d 492 notwithstanding respect the verdict with to Consequently, Supreme Court has de the claims of Durham and Lockhart on the veloped a proof method of indirect involv insufficiency basis of of evidence. In the ing presumptions shifting and burdens of alternative, WCC moved for a new trial production in “plaintiff order that the [can alleged based on pre-trial various trial and his day despite in court have] [or her] errors. The district court denied these mo- unavailability of direct evidence.” Loeb v. appeal tions and this followed. Textron, Inc., 1003, (1st 600 F.2d Cir. 1979). three-part This formula was first II. articulated in McDonnell-Douglas Corp. v. A. 802-04, Green, 792, 93 S.Ct. U.S. 1817, 1824-25, appeal (1973), WCC’s first contention on this is 36 L.Ed.2d 668 proffered again evidence at trial enunciated Department was Texas support findings age insufficient to Community Burdine, v. 450 U.S. Affairs and, therefore, 248, 253-56, discrimination 1089, 1093-95, that the dis- 101 S.Ct. by denying trict court erred (1981).6 its motion for L.Ed.2d 207 summary judgment, In its motion for persuaded by WCC was not either of these conten- also asserted that the additional tions. "similarly not situated” to Lockhart within the McDonnell-Douglas 6. The originally test was de- 16(b), Lockhart, meaning of § Wilson signed proving employment for discrimination not, undisputed could based on the upon brought based race in cases under Title facts, prove justification that WCC’s for their 1964, Rights VII of the Civil Act of 42 U.S.C. discharge pretextual. was The district court (1982). seq. 2000e et The standard was later First, present plaintiff discriminatory must a intent is necessary. age plaintiff prevail case of discrimination. prima can means of indi- “[A] facie pre accomplished “by proving by a This is proof rect employer’s reasons are (1) he ponderance of the evidence that be pretextual presenting spe- without evidence class; (2) protected quali he longs to a cifically relating age.” Chipollini, to (3) position; he was dismissed fied for the F.2d at 898. We now address whether (4) being despite qualified; and he ultimate there is sufficient indirect evidence on the replaced by person sufficiently ly was a support record to jury’s verdicts age an inference of dis younger permit favor of Lockhart and Durham. Chipollini, 814 F.2d at 897. crimination.” prima The establishment of the case facie 1. Lockhart presumption creates a of unlawful discrimi prior Lockhart testified that to his to the de nation. The burden then shifts termination, he had been with WCC for 22 legitimate to come forth fendant years, year and in each he had received a non-discriminatory plain reason for the salary merit increase and satisfactory per discharge in the pre tiffs order rebut formance evaluations. He further testified successful, sumption. If the defendant is that he had never received a demotion or prove by prepon plaintiff must then decrease, salary and had never received a the defen derance evidence reprimand. proffered explanation WCC’s dis purported justification dant’s for his discharge Lockhart’s was that certain is not missal credible.7 discrepancies were found the annual au action, present plaintiff In each es- rebuttal, dit of his office. Lockhart showing8 his prima tablished facie explained why alleged discrepancy each did legit- presented discrimination and WCC any wrongdoing. not constitute He also imate, nondiscriminatory reasons for his explained given adequate that he was not termination. Each then had the charges time to answer the made proving rationale for burden WCC’s audit, him in this as customary was the discharge pretextual. argues procedure, being before fired. prof- Lockhart nor Durham that neither actions, In defense of its WCC called any fered direct to discredit evidence supervisor, Lockhart’s former immediate justifications for their dis- WCC’s asserted Nazworth, noted, however, testify. charge. un- Robert But on cross- We have examination Nazworth conceded that he McDonnell-Douglas, der direct evidence motives, illegal legal by this Court and other Courts of whether either but not extended brought both, Appeals to cover claims under were the ‘true’ motives behind the deci- Corp., Massarsky ADEA. See v. General Motors Transportation Management sion.” NLRB v. 111, (3d Cir.1983); Douglas 706 F.2d 2469, Corp., 400 n. 462 U.S. 103 S.Ct. Anderson, (9th Cir.1981); 531-32 (1983). 2473 n. 76 L.Ed.2d 667 Under these Textron, Inc., (1st Loeb v. 600 F.2d 1003 Cir. circumstances, Douglas McDonnell and Burdine Pa., 1979); Schwager v. Sun Oil Co. plaintiff prove by prepon- command that the a 58, (10th Cir.1979); Rodriguez Taylor, v. 569 60 employer’s pur- of the derance evidence that 1231, (3d Cir.1977). F.2d 1239 nondiscriminatory ported reason for its deci- pretextual. sion is Supreme pro note Court’s recent 7. We — Hopkins, nouncement in Price Waterhouse v. -, 1775, challenges U.S. 109 S.Ct. 104 L.Ed.2d 268 8. WCC also the district court’s denial (1989), apply does not to the facts of the case at of its motion for a directed verdict Dur bar. Price Waterhouse involved a Title VII case grounds on that he failed to a ham established gender employer discrimi where an used both age prima case of discrimination. ”[T]he fade natory legitimate business concerns in plaintiff[s] prima issue of a whether established reaching bypass employ its decision to a female appeal is whether facie case subsumed on into partnership. ee for The Court held that under has sustained her ultimate his or [employer] such a "mixed motive” may "the proving age burden of was a determinative finding liability only by proving avoid a Dreyer in the factor termination.” preponderance of the evidence that it Co., Arco Chemical Atl. Div. of Richfield the same decision even if it would have made 651, Cir.1986), denied, (3d F.2d cert. gender play had not allowed — such a role.” 1348, (1987). L.Ed.2d U.S. 107 S.Ct. at -, contrast, U.S. 109 S.Ct. at 1795. action, present in the Title "the issue is VII good considered Lockhart have been a corporate because of reorganization. Al- worker; Rowe, dependable confusion on bert who at the reorgani- time of the part may have zation WCC’s Manager, his contributed to some of Eastern Zone Lockhart; testified that charges against January and that Durham’s position, Regional former policy “progressive had a WCC disci- Administrative Manager, was combined with that of Re- pline” whereby any employee would re- gional Manager to form the consolidated stages reprimand ceive various before position Regional Operations Manager. being Benja- dismissed. WCC also called allegedly Durham competed with Robert Russell, person min responsible the second Johnson, person experience similar termination, testify. Lockhart’s On age, Operations Manager. to be WCC av- cross-examination, Russell conceded that ers that since Johnson received the new Lockhart had never been insubordinate and position, negates any possible this fact in- deliberately company had never violated age ference that was the determinative policy. Notwithstanding repu- Lockhart’s discharge. factor Durham’s tation, Russell testified that he did not re- quest investiga- that Nazworth conduct an testified, however, Durham that in June allegations against tion into the audit’s 1983, he was informed Hyche, James Lockhart, and that he did not believe that Regional former Manager, that he was to Lockhart, years WCC, after 22 de- newly have the position created of Atlanta served a second chance. Manager. Area Business Center Durham also August 1983, testified that in he as- record, On the our basis of review responsibilities sumed the posi- of this new proffered conclude we that Lockhart’s evi- continuing tion while Regional as the Ad- provide dence was sufficient to a rational Although ministrative Director. Rowe ini- jury’s basis for the conclusion that WCC’s tially denied that Durham served as Area purported justification was not credible Manager, Business Center he conceded and, therefore, age was the determina- upon cross-examination that documentary discharge.9 tive factor in Lockhart’s supported evidence Durham’s assertion. testified, Durham further and documents 2. Durham supported, reorganization that when the Durham, was terminated effect, formally went into promised po- his 17, 1984, February from his as Manager giv- sition—retitled Division —was Regional Manager Administrative in Atlan- en to Lawrence years Kramb who was 34 ta, Georgia. employed by He had been Kramb, old. Rowe testified that who was 1960; pro- since had received various Division, from the WCC’s pos- Industrial tenure; throughout motions and had sessed certain skills that made him more salary received merit increases and satis- qualified Durham, than who was from the performance factory evaluations in each Inventory Division. Rowe had to concede year company. with the upon cross-examination, however, that Ed- legitimate, non-discriminatory reason gar Middlebrooks, who was Kramb’s coun- given by terminating WCC for terpart Florida, Durham in Tampa, was from the that it had working to reduce its force supposedly inept Inventory Division. disagree Whitson, 9. We with the dissent approximate age that because who had less ex- prior perience Lockhart was terminated to the release App. than Lockhart. at 1503. WCC recommendations, McKinsey report’s there conceded in its answer to the that it was allegations is no basis for process Lockhart’s that he was restructuring, “in the which [would] of discharged pursuant "plan, pattern prac- locations,” to a or result in the consolidation of several age McKinsey tice” of app. discrimination. The Re- and that Mr. Whitson would be in port merely represented step charge a in the resulting Pittsburgh restructur- of the Business Cen- ing process. alleged evidence, upon Lockhart in his EEOC ter. jury Id. Based this a could charge already undergoing that WCCwas reasonably a cor- corporate conclude that the focus on porate restructuring releasing wherein several employees began branch of- essentially older being fices were commissioning consolidated into the Pitts- McKinsey with WCC’s of the office, burgh resulting Group, and that McKinsey report new and not when the was management released, by Gerry suggests. would be filled as the dissent record, upon of the tion is that summary judgment Based our review we should have proffered granted against Durham sufficient conclude that been all plain- additional rationally jury they from which a could tiffs since “similarly evidence were not situ- purported justifica- conclude that WCC’s ated” to Lockhart meaning within the of 216(b). pretextual, and tion for his dismissal was Its second contention is that § age summary the determinative factor judgment thus that was should have been granted in specifically against Durham’s termination. Wilson and they charges since did not file with B. the EEOC and Lockhart’s EEOC did provide notice of class-based discrimi- pre-trial alleges and trial WCC various error, nation. As a result of the court’s de that it contends warrant a trial errors that it unduly prejudiced WCC avers was in novo in Lockhart’s and both Durham’s ability against plaintiffs’ defend argues that the case. WCC district court claims. (1) requiring in it to defend four erred separate age distinct discrimination and making argument In that the addi jury in one trial of an errone cases because plaintiffs tional not similarly were situated “opt-in” plaintiff interpretation ous of the purposes joinder Lockhart for under 16(b) FLSA; (2) permit rule under of the § 216(b), principally upon relies § ting testimony non-party witnesses opinions district in Plummer v. courts’ regard to the facts and circumstances General Electric (E.D. 93 F.R.D. 311 employ of their dismissals from WCC’s Pa.1981), and Lusardi v. Corp., Xerox ment; (3) allowing testify French to as to (D.N.J.1987), F.R.D. 351 part vacated in Barbour, age-related comments made appeal and dismissed sub nom. Lusardi striking and then relevant cross-examina Lechner, (3d Cir.1988). 855 F.2d 1062 tion; (4) instructing proof conclude, however, We the district prima facie of the elements a case estab reasoning court’s in the in case at bar is presumption lished a WCC violated underlying accordance with the rationales ADEA. We the district court’s de review Plummer and Lusar- holdings in both a trial de novo di. for nial of WCC’s motion Honeywell, Inc. v. for abuse discretion. Plummer, In the court reasoned that Bureau, Testing American Standards four similarly additional were sit- Inc., Cir.1988), cert. (3d original complainant uated to the based on — denied, U.S. -, S.Ct. following three-pronged they test: (1989). L.Ed.2d 787 (1) employed corporate all in the were same location; (2) department, division and ad- “Opt-in” 1. The Plaintiffs age discrimination; vanced similar claims of opt-in availability of an class action (3) sought substantially the same form governed by suit this case was U.S.C. of relief. 93 F.R.D. at 312. The court held 216(b) (1982), provides which in relevant § these do not five individuals “[w]hile part that assertions, present identical factual consoli- damages re- action to recover [for [a]n single repre- into dation of their claims sulting may from be discrimination] provide would ... an effi- sentative action (includ- any employer maintained litigating procedure cient these related ing public any Federal or agency) Id. analysis claims.” The same under- court of competent jurisdiction State Lusardi. opinion scores the court’s any employees one more for and that, although the court noted behalf himself or themselves and oth- theory recovery, there a common employees similarly er situated. representatives the claims of the class 216(b) (1982). 29 U.S.C. § organizations the Xerox in which substantially employed

WCC asserts that the district court’s in- varied from those terpretation opt-in plaintiff persons seeking opt of the into the rule un- law- 216(b) Accordingly, join- der error. Its first conten- suit. the court held that 216(b). under impermissible 7(d) der Wilson. Under of the § § ADEA, complainant F.R.D. at 377-78. timely must file a charge of discrimination with the EEOC opt-in plaintiffs present the The appropriate and the state agency. deferral employees former action were all within 626(d) (1982). 29 U.S.C. Ordinarily, a § WCC, Division of the Financial Services complainant timely who fails to file a They albeit in different branch locations. charge seeking is barred from relief. Bih they terminated all claimed that were from 96, Singer (3d ler v. 710 F.2d Cir. employment positions their as a result of a 1983); Industries, Bonham v. Dresser pattern, plan of willful practice dis Inc., (3d Cir.1977), cert. crimination that was conducted WCC. denied, 439 U.S. 99 S.Ct. 58 L.Ed. Moreover, they the all claimed same relief (1978). However, 16(b) 2d 113 permits § reinstatement, employment in the form of opt-in plaintiffs charges who did not file wages, liquidated damages lost and attor “piggyback” timely charge on the filed neys Balancing fees and costs. the factors original complainant. the Lusardi, applied as in Plummer and we opt-in plaintiffs conclude that all the in this adopted district court the least The present “similarly action were situated” 16(b) restrictive of deciding view § Lockhart.10 Bradley, whether Lowery Wilson and could contention, Contrary to WCC’s the fact opt Following into the suit. the decision in separate that it asserted defenses with re Sikorsky Aircraft, Pandis v. Div. Unit of spect to each does not vitiate auto ed Technologies Corp., F.Supp. 793, 16(b) matically joinder. poten the While § (D.Conn.1977), 796-98 the court held that problems respect tial for with to class Bradley and Wilson could remain in the management may from arise the assertion suit, though charge even Lockhart’s EEOC defenses, of individualized a district court brought did not state that it was on behalf has the discretion to determine whether situated, of similarly others they since problems manageability such would make timely charges could have filed with the Lusardi, impossible. of the class 855 EEOC at the time Lockhart filed his Cf. (“Whether F.2d at a class 1074-75 action is court, charge. however, ruled that inappropriate disparate of ... because the Lowery could not remain in the suit be individual defenses ... entrusted to the [is] cause his own would have been discretion.”). district court’s sound Under time-barred at the time Lockhart filed the facts of this we find that the charge. EEOC his court did not abuse discretion since Subsequent to the district court’s denial separate WCC’s assertion of defenses post-trial motions, of WCC’s this Court overly consisting would not a class burden adopted interpretation a narrower plaintiffs. five 16(b) in There Lusardi. we ruled that §

Turning plaintiffs to WCC’s second conten charges had not filed who tion, we find district opt court did err the EEOC could into an ADEA class granting summary judgment against action original suit if the complain- 216(b) suggests meaning 10. The dissent that we have misread upon §of did not rest the fact “similarity requirements" department, Plummer be- "worked in the same plaintiffs cause the in this case were from "dif- same division and in the same location." Dis. divisions," managers," op. ferent had "different at 61. Just as critical to the court’s decision country.” findings plaintiffs were from "different areas of the Dis. was its that “advance[d] op. Contrary reading discrimination,” age-based at 61. to the dissent’s similar claims of record, however, plaintiffs "[sought] substantially were all em- F.R.D. at ployed in the Eastern Zone of the Financial same form of relief under the ADEA." Id. WCC, Upon balancing Services Division of and were all under our of the factors outlined in Plummer, supervision Manager, homogenei- Eastern Zone we find there is sufficient Moreover, App. ty among plaintiffs Albert Rowe. at 1508. support con- in the case at bar to Plummer, trary understanding to the dissent's plaintiffs district court’s conclusion that the finding "similarly district court's purposes that case that five were situated” for "similarly 216(b) joinder. situated" under the charge gave employer the no- ant’s EEOC first claims that it was unfair WCC tice of class-based discrimination. 855 ly prejudiced by the cumulative effect of although F.2d at 1077-78. We noted that co-plaintiffs’ the support testimonies. As original complainant’s charge the did not contention, for this WCC notes that case specifically being it have to state that was law under the ADEA holds that the testi brought similarly on behalf of “others situ- mony non-party of witnesses about the cir ated,” “notif[y] must em- the [the surrounding cumstances discharge their ployer] allegedly that it discriminates employment or, from is irrelevant if rele years against persons forty old as a over vant, probative outweighed value is by class.” Id. at 1078. prejudice. undue Moorhouse Boeing v. Co., F.Supp. 390, (E.D.Pa.), 392-93 contrast, In Lockhart’s EEOC (3d aff'd, Cir.1980). 639 F.2d 774 WCC charge merely stated that WCC terminated although submits that testimony such came employment his of on the basis of co-plaintiffs from in this it is no less age. charge provided Lockhart’s WCC prejudicial, presumably because Wilson and explicit implicit with neither nor notice of Bradley improperly joined. alleged of class-based discrimination. Thus, permitting the district court erred in lacking What we find in both WCC’s Bradley join to and Wilson the suit.11 argument analysis and the dissent’s of this correctly Lowery’s join- The court refused understanding issue is an that Wilson and der, explained. but for the reasons have we Bradley brought were not into this suit to claims, buttress Lockhart’s and Durham’s despite jury’s avers that WCC testify support but to of their own claims against Bradley, and verdicts Wilson age-based dissent, discrimination. The improper joinder district court’s of them nevertheless, asserts that numer- “[w]hen unfairly prejudiced its defense plaintiffs ous all level the same discrimina- Lockhart’s and Durham’s claims. WCC charge against tion employer, ‘spill- a plaintiffs’ contends that the tes cumulative over effect’ on the is inevitable.” Dis. jury’s verdict; prejudiced timonies that hold, op. suggests, at 62. To as the dissent juries tendency “compro have a to reach that this case should be remanded because cases; multi-plaintiff mise verdicts” in and improperly joined plaintiffs testified as to that individual were able to take discharges, the circumstances of their advantage testimony of evidence and reversing would be to create a would been if had basis have inadmissible brought every speculative case on the separate their suits. assertion own Our testimony improperly joined plaintiffs standard of of a district court’s review “spilled jury’s findings nonconstitutional error suit re over” into the civil quires plain- respect that we find such error harmless discrimination with to those highly probable properly joined. adopt if it is that the error tiffs hesitate to We rule, where, far-reaching especially did not affect the outcome of the case. such a here, proffered McQueeney Wilmington testimony Trust 779 as evi- (3d Cir.1985). Upon improperly joined plaintiffs F.2d re our dence record, support jury’s find that the to verdict view we error insufficient of the trial court in this case was harmless. in their favor. holding

11. The district court also erred in opt-in a few class action to be started joinder joined by many was sanc- and Wilson later if individual re- permissive joinder tioned rule of Fed.R. quirements can de- of exhaustion of remedies Lusardi, 20(a). recognized opt-in, Civ.Pro. we claims of those who feat the individual opt-in analogized class action suits had been individually administrative but have not met intervention, permissive joinder reject- but filing requirements. comparisons Moreover, ed such since Brad- 855 F.2d at we note that joined pur- ley and Wilson could not have been 16(b) opt-in [t]o view suits under as either event, 20(a), any since suant to Fed.R.Civ.P. permissive joinders or efforts to intervene re- neither one had fulfilled the administrative necessarily require would timely charge filing individually prerequisites quirement his own fulfill all of the However, permit suit. the EEOC. it makes little sense argues managerial next multi- hierarchy WCC’s as Vice-Presi juries plaintiff litigation, Equipment Financing, have a “natural dent of Industrial “compromise verdicts,” tendency” corporate to reach one WCC’s four divisions. partially in While there is no direct in which find favor of both evidence that Barb prior our made similar plaintiff defendant. Since statements to the and terminated, time improperly when Lockhart was joined, it WCC jury would be for the unduly prejudiced reasonable to con by contends that it was clude that his January statement of jury phenomenon. this the likelihood of managerial not however, viewpoint, was a recent offers, but support no cases to WCC merely that it was a cumulative statement contention and concedes that “it novel managerial policies that had been sanc any compromise cannot known whether be by top tioned or favored executives at WCC jury.” by Appel Brief for was reached for a considerable time. It would have Nevertheless, lant 31. asserts at WCC been reasonable for the to believe that said that it cannot be with fair assurance Equipment the Vice President of Industrial compromise occur, that such a did not Financing held a of sufficient it entitled thus is to a new trial. We dis breadth that he was either involved in the agree for the same reasons that we cannot issue, policies at by or had been advised join opinion “spillover the dissent’s that a hostility other executives of WCC’s to multi-plaintiff effect” occurs in ADEA ac seniority “a company wards driven with old tions. task on is Our review to ascertain management.” major company When a ex jury’s whether the verdict is reason speaks, “everybody ecutive listens” in the light presented, able evidence corporate hierarchy, and when an execu indulge in spec not to unsubstantiated and prove tive’s comments to be disad assertions. On the record of ulative this vantageous company’s subsequent to a liti jury’s we are satisfied the verdicts gation posture, compartmentalize it can not were reasonable. nothing this if executive as he had more to Lastly, argues WCC that the dis company policy janitor do with than the or joining parties permit trict court’s error Compare watchman. Miles v. M.N.C. testimony ted the inclusion of evidence and (11th Cir.1985) Corp., 750 F.2d that would not have been otherwise avail (racial by slur made closely official in plaintiff individually. able to each WCC’s company’s hiring in the volved decisions principal point contention on this concerns admissible); held Roadway v. Cline Ex age-related of an Lockhart’s use comment (4th press, Inc., Cir.1982) 689 F.2d Barbour, January by made in 1984 Robert (managers’ company’s statements that new who was at that time Senior Vice-President employment policy designed replace to trial, of WCC’s Commercial Services. At admissible); its older workers held French, employee, Donald a former WCC Mississippi, Staheli Univ. 854 F.2d testified that had told him Barbour (5th Cir.1988)(statement made “Westinghouse seniority Credit was a driv person having authority no over denial of company management en with old plaintiff’s inadmissible); tenure held Hill v. going change, going that’s to ‘I’m to Inc., (6th Spiegel, Cir. ” change App. that.’ at 628. WCC asserts (comments 1983) by managers made that since Barbour was not associated 'with discharge involved in decision to the Financial Services division until after inadmissible). held termination, Lockhart’s his statement was respect irrelevant with to Lockhart’s dis Testimony Non-Party Witnesses charge and thus would have been inadmis unduly submits that it was WCC sible in Lockhart’s individual case. We dis prejudiced by testimony from Roy Owens agree. French, employees and Donald former ignores prior the fact that to and at WCC who testified about circumstances termination, the time of Lockhart’s Barb- of their release addition to statements already executives, our top an individual at the of made WCC and that Moor- find, may dictates a trial. how- job house new We have had for his own as a result of ever, of that are distin- that the facts case During Barbour’s statement. the direct present guishable from the action. examination, the properly district court lim- Moorkouse, the district court held that for- ited testimony French’s as follows: plaintiffs in employees mer who were other Q. Well, what, anything, if did Mr. primarily testify could not about lawsuits say you Barbour the luncheon? surrounding circumstances their own dis- A. Mr. Barbour said that charges help plaintiff prove in order to seniority Credit was a company driven pattern practice of discrimination. management with old going and that’s The court noted: change, going change “I’m that.” exception testimony With the concern- Q. this, you When your heard what was ing age generally, comments about reaction? adequacy perform- of Moorhouse’s work Well, guess frightened, A. I concerned. Boeing’s in ance and transfer lieu of the lay practice, testimony off THE right. COURT: All INow don’t plaintiff/witnesses’ from each drawn any testimony along want more that line knowledge circumstances sur- nothing whatsoever. That has to do with off, rounding lay his own which ultimate- this case. We’re concerned with some- ly led to the witnesses’ suit Boe- body being discharged age. because of ing. App. at 628-29. F.Supp. (emphasis original). at 392 present action, In the neither Owens nor Similarly, the imposed court the follow- alleged French that he was terminated ing limitation on WCC’s cross examination pattern, plan practice account a of of French: age providing discrimination.12 After some Q. you Now what was reaction to that background employ- information on their you statement? You said were shocked? histories, they chiefly ment testified about A. Yes. comments made WCC executives. Q. Why was that? Testimony 3. French’s and Cross-Ex- Well, happened I per- A. a senior be amination son. argues WCC that the district court permitting erred in testify French to about beyond THE COURT: this is Now all statement, age-discriminatory Barbour’s scope of the direct examination. compounding and then the error strik App. at 631-32. ing WCC’srelevant cross-examination. We opportunity WCC’s to attack French’s already have held that state Barbour’s credibility through contradictions charge ments were relevant to Lockhart’s deposition testimony came the court’s age Therefore, discrimination. we focus after testimony, exclusion of emotional and was inquiry our on WCC’s contention that the uninhampered. district court struck relevant cross-exami Q. nation. describing that conversation your deposition testimony, you didn’t re- record, Upon our review of arewe management” fer to the words “old fully convinced that the district court al- there, you? did pre- lowed WCC’s counsel to use French’s way you A. Not the read it there now. deposition credibility trial to attack his dur- ing Q. Well, you any cross-examination. The court have reason— do plaintiffs’ you limited both and WCC’s counsel read to see if I misread would like to addressing any from “fear” that French it? example, background being inquired

12. For French in his testi- When the court released. 13, 1984, mony July contending stated that on he was dis- Hoover whether he was Keith, Regional Manager, charged age, respond- a Credit told him that on the basis of his French longer negatively. App. WCC no needed him and that he was at 626-27. ed prove presumption in order to a establish A. No. Age that the defendant violated the Dis- App. at 632-33. Employment App. crimination Act.” court did not abuse We conclude Although judge clearly erred limiting irrelevant and discretion in mentioning presumption after WCC testimony highly prejudicial emotional into brought already had forth substantial evi- Corp., v. Kaman the record. Haskell Cf. it, preju- dence to rebut that error was (2d Cir.1984) (plaintiff Upon dicial. of the entire review testify as to emotional effect could not jury,13 solitary the initial and use of the testimony being discharged since such “presumption” by the term was offset dis- Moreover, prejudicial). we irrelevant and repeated explanation trict court’s to the provided the court WCC with conclude that by preponderance that it had to find opportunity to discredit full fair of evidence that was the determinative through pre testimony use of his French’s discharge plaintiffs, factor in WCC’s deposition. trial and that the had bear individu- ally Jury persuasion.14 4. The Instructions their burden of avers that the district In Psaty, not decide that an “[w]e d[id] by in reversible error court committed jury presumption instruction to a on ... [a] proof of the ele structing jury the that every is error in case.” 442 F.2d reversible case a prima ments of a establishes facie “recurring at 1162. The instructions on the ADEA. presumption that WCC violated case, however, presumption the in th[at] earlier, a defendant’s articula As we noted give jury impression were bound to the nondiscriminatory legitimate tion of rea a presumption that the was evidence.” Id. presumption son its conduct rebuts the case, present opposite hap- In the the exact by plaintiff's establishment of a formed pened. repeatedly The district court ex- age of discrimination. prima case facie plained plaintiffs had to meet indi- 252-53, Burdine, 101 450 U.S. at S.Ct. See vidually persuasion by pre- their burdens a Therefore, it can at 1093-94. be reversible ponderance Significantly, of the evidence. jury instruct a error for a trial court to a fatal that court Psaty flaw presumption after the defendant has met a guidance jury “failed furnish to the as to proof necessary to rebut that of burden quantity proof required or the amount States, Psaty 442 presumption. v. United dispel presumption.” in- Id. (3d Cir.1971). 1154, F.2d 1161-62 case, explained stant the court that WCC produce enough evi- argues the district “need[ed] [to] support dence in claim to create a judge prejudicial court committed error [its] genuine jurors’ jury: “In a moment issue fact” minds when he informed the plaintiff presumption. App. you I tell must to rebut the at 1206. will what [each] Jury upon must be evaluated as a action was based reasonable factors oth- instructions age. piecemeal. Ayoub Spencer, er than and not v. whole denied, 164, (3d Cir.), cert. 432 U.S. 550 F.2d 168 2952, 907, (1977). 53 L.Ed.2d 1079 97 S.Ct. pro- If the defendant satisfies its burden of by tending proffering duction evidence jury in its to the 14. The district court non-discriminatory show a reason for the correctly stated: action, challenged plaintiff then each must general remember that as a mat- You must by persuade you preponderance a of the evi- plaintiff proof by bears the burden of a ter the dence that the reasons articulated the de- preponderance of the evidence that the defen- discharge layoff fendant for the a are but intentionally discriminated him dant pretext coverup mere or a for what was in age. on the basis of his discriminatory purpose truth a or that a dis- criminatory likely reason more motivated the persuades you by preponder- employer. plaintiff persuade a If a Should the so you, you ance of the evidence that the defendants dis- must find that the defendant violated charged age, you him because of his then the ADEA. App. must defense that its at 1205-07. consider the defendant’s

57 Viewing jury s instructions as damages.16 dated We must affirm the dis whole, jurors we conclude that the were trict court’s denial of WCC’s motion for a properly apprised of had the judgment who burden of n.o.v. on the willfulness issue proof quantum and what of evidence was “unless the record ‘critically is deficient of persuasion.15 Dreyer needed for quantum minimum of evidence from Cf. Co., Arco Chemical Div. Atl. jury might which the reasonably afford Richfield ” Co., 651, (3d Cir.1986)(no 801 F.2d 653 n. 2 relief.’ Link v. Mercedes-Benz North America, Inc., reversible error since “the district court 918, (3d 788 F.2d Cir. specifically repeatedly 1986) (citation instructed omitted); see also Kinnel v. it that must find that was a deter Mausoleums, Inc., Mid-Atlantic 850 F.2d discharge”), 958, (3d minative factor in the Cir.1988). denied, 906, t. 480 U.S. cer Our analysis of the willfulness issue is (1987); S.Ct. 94 L.Ed.2d 519 Mitroff guided by this Court’s decision in Dreyer, Corp., (6th v. Xomox 656-58, 801 F.2d at where we set forth a Cir.1986) (instruction prop as a whole standard for determining willfulness in the er since the court twice stated that burden context of employment individual termi proof plaintiff). was on the nations that we comports believe with the standard set Supreme Court recognized While we have Airlines, Trans Thurston, World Inc. v. multiple there trial errors this 111, 125-30, U.S. 623-26, 105 S.Ct. holding we join cannot the dissent (1985); 83 L.Ed.2d 523 McLaughlin accord multitude of error is alone sufficient v. Richland Shoe 486 U.S. ground for reversal. The Federal Rules 1677, 1681, S.Ct. (1988). 100 L.Ed.2d 115 require every stage “court at We noted that the Thurston proceeding standard of disregard any must error or determining willfulness—if employer an ei proceeding defect in the which does not ther knew or disregard showed reckless rights for par affect the substantial the matter of whether its conduct added). violated (emphasis ties.” Fed.R.Civ.P. 61 apt ADEA—was for harmless, those Since find situations we each error there is employer where the adopts policy that concluding no basis for that WCC’s sub concluded, violates the ADEA.17 We rights Therefore, stantial how were violated. ever, application of the Thurston we hold that the district court did not alleging disparate standard to cases treat denying abuse its discretion in WCC’s mo ment in an employment individual context tion for a new trial. produce

would the undesirable effect of C. permitting recovery liquidated dam ages whenever there was a violation of the WCC’s final contention is that insuffi- 656-57; ADEA. Dreyer, 801 F.2d at ac cient evidence exists on the record to war- Anastasio, cord 838 F.2d at 707. jury’s finding rant the of a willful violation and, therefore, under the ADEA Keeping Thurston, that Dur- with the rationale of ham should liqui- that, not have been awarded we therefore concluded in cases ra- 626(b) (1982). 15. The dissent take issue with the fact that the tions.” 29 U.S.C. § The ADEA jury district court did not instruct the that it had qualifies liquidated damages, by reference to the separately plan, pattern practice to find or FLSA, equal as an amount to the losses sus- age disagree discrimination. We that such a wages tained in lost and other benefits. See 29 jury finding.” determination was "an essential 216(b), 626(b) (1982). §§ U.S.C. view, op. Dis. at 63. In our it was sufficient jury for the court to instruct the find that WCCterminated each tion of the ADEA. In that it had to example, 17.For in EEOC v. Elec plaintiff in viola- (3d Corp., 1988), applied tric 869 F.2d 696 Cir. we reaching finding, that the Thurston standard to determine whether cor properly apprised was of who had the bur- porate pension pay plans and severance for re proof den of sary and the amount of evidence neces- tirement-eligible employees were in willful viola persuasion. tion of the ADEA. provides "liquidated damages 16. The ADEA payable only shall be in cases of willful viola- volving employer’s conduct an after he an established the Atlanta Area Busi- finding employee, a of a willful outrageous individual ness Center not since Dur- supported of the ADEA had to be violation project ham was coerced into this outrageous conduct that evidence exploited any other manner. To the merely duplicative of that was not evidence contrary, the record establishes that Dur- awarding compensatory needed for dam- voluntarily ham assumed the additional ages. Dreyer, 801 F.2d at 658. We noted duties, gave monetary and that WCC him a liquidated damages might justified be Moreover, appreciation. incentive award systematic purg- where there is evidence of under the facts of this WCC’sconduct ing employees; discharging of older an em- egregious requesting was not that Dur- ployee deny a time that him an would aspects ham familiarize Johnson with the employer’s pension; previ- imminent and an employment position of his leaving. before of the ADEA. ad- ous violation Id. We Kramb, If WCC had asked Durham to train monished, however, there no set actually replaced who Durham contends prescription for what constitutes conduct him, the willfulness issue would be a much warranting liquidated damages, and that Finally, closer call.18 we note that al- appropriateness “the of the award [was] though Durham claims that he was not told dependent upon inquiry an ad hoc into the discharge, the reason for his the record particular circumstances.” Id. The Re- being shows that he was told that he was suggests conducting that in statement reorganiza- terminated because of WCC’s properly inquiry, “the trier of fact can con- super- tion. fact that Durham’s direct act, of the defendant’s sider the character visor refused to elaborate further as to and extent of the harm to nature [and] why no for him would be available that the defendant caused or restructuring after WCC’s is not evidence (Sec- intended to cause.” See Restatement outrageous conduct. ond) 908(2). of Torts §

Durham asserts that the evidence Having examined the character outrageous actions, WCC’s conduct terminat of WCC’s we must now address ing put him is found in the fact that he an the nature and extent of the harm caused overwhelming amount of extra work hours to Durham. Such harm must extend be planning the into Atlanta Area Business yond normally associated with an em operated Center that he until his termi ployee’s discharge resulting from dis nation; him that WCC asked to work for crimination; injury must have been being one month after notified of his dis compounded by employer’s the conduct reputed replace in order to train his order to liquidated warrant an award of ment; his termination occurred that when damages. although We conclude that Dur buy he was under a contract to a new ham’s unlawful termination coincided with purchase that he forced to house while home, purchase of a new that misfor jobless; supervisor and that his immediate tune alone cannot be the basis for award discharge. never told him the reason for his ing damages. of double If we were to hold otherwise, proffered every plaintiff age then in an We find that this evidence falls discrimination quantum” short of that “minimum case who was considera needed support jury’s finding the to of willful dis- ble debt at the time of their termination respect punitive crimination. to the character be to With would able receive dama actions, discharge ges.19 of WCC’s of Durham willfulness, jury might rationally rights. pled,

18. A evidence find of out- tial Evidence of when rageous employer requested if an behavior that is often introduced in ADEA suits and there is employee young, inexperienced practice an older train a no inherent harm done this since job person prior involuntary jury only for his to termi- the reaches the willfulness issue after nation. finding it has made a discrimination. If encourages, every we were to hold as the dissent perplexed multi-plaintiff We are 19. at the dissent's conclusion ADEA suit would have be bi- proffered by separate that insufficient evidence Durham furcated into two trials—the first one ADEA, prove prejudiced wilfulness WCC’s substan- to establish a violation of the and the judgment III. diet or a notwithstanding the ver- dict on the issue of willfulness because the reasons, foregoing For the we will affirm record utterly contains no evidence estab- denying the district court’s order WCC’s lishing Maj. op. willfulness. at 59. judgment notwithstanding motion for the and, alternatively, verdict for a new trial error, Given litany this which all mem- upholds jury’s finding insofar as it panel bers of the are recog- unanimous in liability to Lockhart and Durham. We will nizing, given our reviewing standard of up- reverse court’s order insofar as it error, such i.e. that error is harmless jury’s finding holds the that WCC acted if it highly probable1 is that the error did willfully discharging Durham. Accord- not the outcome of affect ingly, portion we will vacate that of the McQueeney v. Wilmington Trust judgment awarding district court’s order (3d Cir.1985), F.2d I cannot under- liquidated damages. Durham stand majority how the can hold these erro- rulings, individually neous particularly but GARTH, Judge, dissenting: Circuit combination, to be harmless. Apart from the conclusion which it reach- Moreover, majority discuss, does not majority jury es—the verdict affirms unknown, therefore its is re- plaintiff favor of the that would reverse —I garding point the focal Westinghouse’s judgment majority analysis does not —the defense—the McKinsey Report. This Re- differ substantially from mine. port predicate plaintiffs’ was the for the majority agrees theory

The me with this subscribed by plaintiffs plan action could not be maintained calling for the elimination of its older Bradley, by Wilson and reason of their management middle employees. Westing- timely charges failure to file with the argued house Lockhart and pursuant 626(d). EEOC to 29 U.S.C. discharged could not have § been as a result op. Maj. agrees at 53. It also with me of McKinsey Report because the Re- joinder improp- of these port long was filed they after were dis- 16(b) er under of the Fair Labor Stan- charged.2 Westinghouse pointed also out (“FLSA”), op. 53-54, maj. dards Act at respect plaintiffs, that with to the other joinder improper was also under Fed. only Durham could have been affected 20(a). Maj. op. R.Civ.P. 53 n. principal recommendation of the Re- port consolidation of the financial ser- I, majority, The as do —the concludes that equipment groups— vices and industrial Judge Teitelbaum erred when he instructed nothing and that “affect” had to do you a moment I tell will what “[i]n age. majority opinion Durham’s sim- prove must in order to es- [each] ply does not address these contentions as presumption tablish a that the defendant upon appeal. bear the issues on Age Employ- violated the Discrimination in 1204) Maj. op. (citing ment Act.” at 56 A. Furthermore, majority opinion blithe- added). (emphasis ly Westinghouse’s dismisses complaints Finally, agrees majority by Judge the me about the actions taken with that Teitel- refusing grant limiting Westinghouse’s the district court erred in to baum in cross-ex- Westinghouse’s plaintiffs’ principal motion for a directed ver- amination of the wit- High probability requires second one to examine whether such violation 1. that the court have a prejudice guarantee sure conviction that the proffered was willful —to error did not that evi- Grayson, the defendant. United v. States 795 dence willfulness could not "have infected 278, (3d Cir.1986). F.2d In the context of respect and tainted the record with to all other error, non-constitutional harmless the civil and Moreover, op. issues.” Dis. at 63. we note criminal standards of review are no different.

that the dissent’s contention that the district Co., McQueeney Wilmington Trust 779 F.2d impermis- court’s instruction on willfulness was 916, (3d Cir.1985). review, beyond parameters sible is the of our since the court’s instruction has not been chal- McKinsey Report respect 2. I discuss the with lenged appeal. Durham, Wilson and infra. ness, testimony Donald French. French’s court held that Federal Rule of Civil Proce- damaging piece 20(a) permissive the most of evidence dure sanctioned join- such presented plaintiffs against der. The by the West- district court erred in each of rulings inghouse. extremely murky The record is these and those errors have been pointed majority opinion. out the regarding Maj. the district court’s restriction of 53, op. 53-54, 57, at Westinghouse’s Thus, cross-examination. highly questiona- majority’s the is foremost, majority agrees First when it holds that the limitation of

ble court, with me that a decision of this bind- applied only French’s cross-examination ing courts, directly on the district is con- testimony. irrelevant 16(b) trary to the FLSA ruling made in § Lechner, this case. Lusardi v. 855 F.2d many With this critical and substantive (3d Cir.1988), unequivocally establish- pervading errors the entire course of this principle es the plaintiffs failure of Westinghouse say I cannot had a seeking joinder timely charge to file a Certainly, fair I could not hold trial. joinder the EEOC bars the plain- those jus- had received substantial tiffs, charges absent classwide in the tice, me, I because it is clear as would filing (in EEOC of the named this hoped have clear to the it would be other Lockhart). case precise That is the situa- members, panel these errors affected Indeed, tion in every this case. circuit that Westinghouse’s rights. substantial See had question considered this even before Moreover, light Fed.R.Civ.P. 61.3 filed, our Lusardi decision had been errors, particularly misjoinder these reached the same conclusion. See Kloos v. plaintiffs, majority panel of this cannot Day 397, (8th Carter 799 F.2d have a sure conviction errors Cir.1986); California, Naton v. Bank identified, they preju- which have did not (9th Cir.1981); 649 F.2d 691 Mistretta v. Westinghouse. dice See United States v. Corp., 588, (10th Sandia 639 F.2d 594-5 (3d Cir.1986). Grayson, 795 F.2d Cir.1980); Corp., McCorstin v. U.S. Steel my opinion, judgment in favor of (5th Cir.1980). 755-56 Not Lockhart and Durham must be reversed. I joinder improper 16(b), under § dissent. but it was not available under Fed.R.Civ.P. 20(a), as the district court ruled. I. 20(a) permits joinder Fed.R.Civ.P. if the Perhaps critical error most made plaintiffs rights arising assert out of the court, recognized the district here same if any question transaction and of law panel, entire was the district court’s plaintiffs or fact common to all will arise in ruling permitted Westing- which over However, majority opin- the action. as the objection, house’s strenuous three in- other properly (Maj. op. 11), ion holds n. joined in dividuals to be this suit: Messrs. neither nor Wilson could have been Bradley, Wilson and Durham. Two of joined pursuant to this Rule since neither Wilson) (Bradley these three had failed had fulfilled the require- administrative timely charges to file with the EEOC. The filing timely charge ment of with the permitted district court nevertheless all EEOC. joined holding three to be situated,” “similarly Moreover, joinder and that thus even if Lusardi was not the 16(b), circuit, could under be effected FLSA 29 law in this the district join- court’s § 216(b). Alternatively, U.S.C. district der of the additional could not be ing disturbing judgment 3. Federal Rule of Civil Procedure “Harmless or otherwise or order, provides: Error" ap- unless refusal to take such action pears to the court inconsistent with substan- No in either the admission error justice. every stage tial The court at of the exclusion of evidence and no error or defect any ruling proceeding disregard any anything in must or order or in done or error or defect by by any parties proceeding omitted the in the court or of the which does not affect the ground granting rights parties. is for a new trial or for substantial of the setting added.) vacating, modify- (Emphasis aside a verdict or for majority opinion try. Indeed, The discusses sustained. Lockhart worked in Pitts- and finds favor with Plummer v. General burgh, Pennsylvania; Atlanta, Durham in Electric, (E.D.Pa.1981). Georgia; 93 F.R.D. 311 I Jacksonville, Wilson in Florida; however, suggest, majority Bradley Livonia, the has and in Michigan. While majority opinion misread that case. The Bradley Lockhart and discharged were by attempted in equate regional has to the situation the the manager, same Durham and present presented case the situation in discharged with Wilson each by were a different Plummer, although acknowledges Thus, it individual. while Durham filed a EEOC, of the failure of the timely charge because additional he nevertheless plaintiffs timely charges here to file with did satisfy not the “similarity” require- EEOC, joinder 16(b) the could not have been ments of FLSA even as construed permitted Plummer. by even under Plummer.4 Accordingly, the district permitted court should not have Durham to Plummer, the district court was con- join Lockhart’s action. permit plain- fronted with a motion to nine the Plummer action. The dis- join Despite divergent tiffs circumstances, these joinder plaintiffs trict court allowed the of five the argue they proper- were plaintiffs ADEA in ly joined by all of whom worked a common bond as victims of department, same in McKinsey Report. the same division and Report This was a However, prepared the same location. by management the district consulting firm joinder court refused to allow the of four which recommended the consolidation of plaintiffs other ADEA who former Westinghouse. were two divisions within This employees argument of General Electric but who simply does not fly. McKinsey in departments worked various other and investigate management was hired to Plummer Westinghouse (A. 667). divisions. The district court in May 1983. (1) they discharged 3, noted: that because were vari- Lockhart May on departments 28, 1983, ous and it divisions was diffi- and on June well before cult plaintiff, McKinsey to see how the named Plum- inquiries had finished its mer, represent (A. 669-70). adequately report. would the other The consolidation of defendants; (2) group the defenses raised the financial services and the indus- particu- equipment General Electric would turn on the group, principal trial recom- employment particular lar decisions of McKinsey Report, and mendation of the oc- managers. Plummer, curred in January different 93 F.R.D. Wilson was ter- 1984. at 312. year minated almost a later on December Westinghouse 1984. concedes that Dur- plain- The circumstances the additional go as ham let a result of the recom- present nearly tiffs case are more McKinsey Report, mendations of the but plaintiffs who were denied identical to the age. I just because of his As have Plummer. joinder in the district court out, however, pointed improp- Durham was Here, plaintiffs are all from different erly joined. divisions company.5 They each re- ported managers they majority opinion, different at footnote at- all from tempts explain were different areas of the coun- the relevance of the discrimination, Significantly, they "similarly the district court in Plummer expressly did not EEOC address the issue of situated” as defined Plummer. The fact that assume, however, filing. putative I that all the plaintiffs supervision were "all under the plaintiffs filing Plummer had satisfied EEOC Manager” bearing the Eastern Zone has little requirement, specif- because the Plummer Court "similarly requirement situated” defined in ically Burgett Cudahy F.Supp. cited to Plummer. The “Eastern Zone” of (D.Kan.1973), which was a case con- Corporation virtually Credit which embraces necessity timely cerned with the of a EEOC continent, cry, one-half of the is in terms a far filing. similarity, Systems Space from the Division employed of General Electric which all of the majority opinion, p. 5. The 52 n. is of the Plummer, joined plaintiffs plant. in one See part view that because were all 93 F.R.D. at 312. the "Eastern Zone of the Financial Services Di- damages vision” and because all sued for discharge Report only to Lockhart’s can McKinsey majority conclude that the has though Lockhart was appreciate even terminated injustice failed to the these rul- report months the was finished and before ings have dealt to the defendant. More Nevertheless, majority opinion filed. the importantly, majority affirming the the Westinghouse was un- claims that because departed has verdict from our established dergoing corporate restructuring pri- some McQueeney Grayson and standard of re- McKinsey or to the authorization of the by holding view such error to be harmless. Report, jury Westing- could conclude policy terminating employ- older house’s II. independent McKinsey ees was of the Re- Maj. port’s op. ultimate recommendations. commonality Given the distinct lack of or First, the record at 50 n. 9. does not similarity amongst plaintiffs, these it is the consolidation of several reveal how me, I hoped clear to as had it would be to Pittsburgh the branch offices into office majority, the that the district court both plan practice can a nationwide establish permit- erred and abused its discretion in alleged by of discrimination such as the one ting joinder. Moreover, their the error in Second, plaintiffs the here. nowhere does joining plaintiffs the additional was com- charge Lockhart the consolidation pounded impermissi- when their otherwise Pittsburgh, occurred in which marked testimony jury. ble was heard beginning company’s allegedly of the dis- plaintiffs When numerous all level the Instead, criminatory policy. as I have same against discrimination their out, pointed relies Lockhart himself exclu- employer, “spillover” jury effect on the is sively, McKinsey Report trig- as the “spillover” It was this inevitable. that se- gering discharge. for his event verely prejudiced Westinghouse, any as only simple timing Not does the fact of reading fair of the record reveals. plaintiffs’ argument rebut 53-54, apparent- opinion at majority McKinsey Report, were all victims ly my joinder reads reaction to the of Wil- but offered individualized Bradley son and my as an assertion on explanations for the terminations of Lock- part that Bradley joined Wilson and hart, Bradley and Lockhart Wilson. was only to buttress the claims of Lockhart and problematic fired as a result of a audit Nothing Durham. responsibility. could be further from areas Wilson was poor performance. My point dismissed for sales the truth. is that Wilson and Bradley was laid off when two district of- Bradley joined should never been have as fices were into one combined statewide of- plaintiffs joinder unfairly and that their place fice—a consolidation which took in prejudiced Westinghouse. the defendant June, plaintiffs point 1983. The do not so, though is Bradley This even Wilson and any evidence in the record which indicates may legitimate had have claims of their this consolidation resulted from the regard, own to assert. In this I do not lose McKinsey recommendations. 1) sight of the fact that: both members majority agree joinder with me that the It true that is this court’s Lusardi deci- improper of Wilson and adverted, {see sion to I which have earlier 53-54); 2) maj. op. despite Wilson filed erroneously after district court claims, Bradley’s “independent” age permitted However, joinder in this case. Thus, despite found them. view, my ruling the district court’s and the led, majority opinion’s consequences it overbroad assertion to which i.e. the testi- witnesses, who, my analysis provide mony party would absent the basis joinder, every for reversal in case improper could have testified to where dismissal, improperly joined, the circumstances of their consti- were I have advocated tuted, more, without error. reversal here reversible because of the cumula- When linked with the other errors which tive errors committed the district court acknowledged, we have all I and the prejudice upon which severe visited West- dissent, inghouse have listed at I joinder the outset of this aas result of the of multi- pie plaintiffs in this case where the circum- IY. discharges of stances each of their were so court, The ignoring district Westing- completely different. legitimate house’s articulation of a non-dis- Additionally, the error of the district criminatory reason for its conduct—a rea- failure, aggravated by despite court was son which served to presumption rebut the Westinghouse’s request, provide to the prima case, accorded a facie nevertheless charge

jury jury with a that the must find charged jury: the Westinghouse engaged pattern in a or In a moment I you will tell what [each] practice alleged of as discrimination the plaintiff prove must in order to establish Indeed, complaint. Westinghouse amended presumption a that the defendant violat- proffered specific designed interrogatory Age ed the Discrimination in Employ- specific jury to elicit this and essential find- ment Act. ing, and this too denied. Brief was (A. 1204) added). (emphasis 1; Westinghouse Reply at 4 n. Brief at 1-2. The majority Judge concedes that Teitel- Thus, joinder the error of the district clearly baum “mentioning pre- erred in the court became even more harmful when it sumption Westinghouse after already had compounded by was the district court’s fail- brought forth substantial evidence to rebut ure, despite Westinghouse’s request, presumption.” Maj. op. at 56. How- [the] jury the that it must find that West- ever, majority the holds in the face of the inghouse engaged pattern practice in a or acknowledged numerous errors committed discrimination, provide interrog- or to an court, too, the district that this error requiring explicit finding atory an on this Indeed, egre- even when added to the jury other more issue.6 the fact that the found gious rulings court, Westinghouse respect of the district did not Wilson,7 against Westinghouse but as prejudice Westinghouse. clearly Durham to Lockhart and indicates jury general pattern, did not find a V. plan, practice or discrimination. Lastly, panel again unanimous holding that the record did not contain suf- III. ficient jury’s evidence to warrant the find- only Bradley, Not were Wilson and Dur- ing Thus, ADEA a willful violation. permitted testify party ham as witnesses only joined improperly was Durham as a improperly joined par-

when were as party, jury but which the evidence ties, addition, French, but Owens and support heard in of Durham’s contentions Westinghouse employees both former ADEA, of willful violations of the had to permitted jury to relate to the the circum- have infected and tainted the record with discharges stances of their as well. Not- respect to all of the issues. withstanding majority’s analysis on the professes majority perplexed The to be (an admissibility testimony analysis of this by my argument that evidence of willful- reservation) great I with which have pertaining improperly joined par- ness to an jury fact remains that the heard the testi- ty prejudicial had to have had effect mony testifying of six individuals all about Maj. op. the entire case. at 58 n. 19. It the individual circumstances of their dis- missals, prolif- is evident that I do not advocate the when it should have heard from majority suggests one—Lockhart. eration of trials as the court, majority p. appar- Westinghouse argues, though jury 6. The of this 57 n. 7. As even ently disregards plaintiff’s amended com- returned verdicts both Wilson and Brad- plaint charges, plaintiff, which as to each ley, prejudice this error not harmless. "plan, pattern, practice had a lay presenting to WCC in the burden of individ- unlawful discrimination in which the Defen- separate ualized defenses to four claims before to, did, conspired willfully dant terminate jury, prejudice, one and in the inherent which is similarly and other individuals situ- by having entailed hear the circum- solely age.” ated to him as a result their multiple long-term stances of termination of (Lockhart (A.39), complaint Wilson 22¶ If employees. (A.41), (A.43), (A.46), Lowery 30 Durham 38 ¶ ¶ (A.48)). Bradley ¶44 I do contend is that in this I that do. What SUR PETITION FOR REHEARING cumulative errors committed GIBBONS, Before Judge, Chief particular rendered this the district court HIGGENBOTHAM, SLOVITER, among Included those errors trial unfair. BECKER, STAPLETON, MANSMANN, misjoinder testimony and his was Durham’s GREENBERG, HUTCHINSON, willfulness) (both discharge and as to which SCIRICA, COWEN, NYGAARD and misjoinder, by as a result of his was heard GARTH, Judges. Circuit jury. HIGGENBOTHAM, Jr., A. LEON If we consider the district court’s instruc- Judge. Circuit imper- on the of willfulness—an tion issue petition no rehearing by appel- missible instruction because evidence of for filed in record—in appears willfulness con- lant having the above—entitled case junction all of the other evidence judges partici- been submitted to the who have been heard had the which should not pated in the decision of this Court and to properly joinder district court ruled on the all judges the other available circuit of the question, highly it more than becomes regular service, circuit in active and no point certainty, probable, to the judge having who concurred in the decision combined, individually, district rehearing, asked for majority and a of the court’s affected the outcome of this errors judges regular circuit of the circuit in ser- leading case to the “sure conviction that having vice rehearing, voted for prejudice Westing- indeed did” error[s] petition rehearing for by panel and the Grayson, house. United States v. banc, Judge Court in is denied. Hutchin- (3d Cir.1986). F.2d grant rehearing son would before the Judge grant Court banc. Garth would VI. petition panel rehearing for all of egregious The most error committed expressed panel the reasons in his dissent. and the one that the district court infects supra, See at 59. ruling the entire case was its which allowed Wilson, Bradley, joinder and Dur- ham, testimony and therefore the error, plaintiffs. my

additional This

opinion, proceedings, tainted the trial so more, this case must re- without be Unfortunately,

manded for a new trial.

however, is “more.” there catalogued I the other have district court UNITED STATES America errors, almost all of which are admitted opinion the majority to be rul- erroneous ings. SCHOOLCRAFT, sheer Given the number of these Appellant. David D. rulings erroneous which this record No. 88-5757. presents, consequences and the that flow Appeals, United States Court of them, question from there can be no but Third Circuit. rights Westinghouse substantial affected, seriously and substantial Argued Feb. 1989. justice Westinghouse was denied. See Decided June 1989. Fed.R.Civ.P. 61. Rehearing Rehearing In Banc I respectfully therefore dissent from so July Denied majority’s opinion much of the which af- judgment firms the I the district court.8 judg-

would vacate the entire district court

ment and remand this case for a new trial. text, join majority willfully

8. As I have stated in I as holds that acted reversing judgment discharging so much of the district court Durham.

Case Details

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

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 13, 1989

Citation: 879 F.2d 43

Docket Number: 88-3374

Court Abbreviation: 3rd Cir.