Wilson v. United Air Lines, Inc. et al

Filing 3

ORDER granting Defendants' Motion to Sever; Directions to Clerk; Directions to Plaintiffs. Signed by Judge Chesney on 2/2/15. (farS, COURT STAFF) (Filed on 2/2/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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ELDRIDGE JOHNSON, et al.,
Plaintiffs,

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No. C-12-2730 MMC
ORDER GRANTING DEFENDANTS’
MOTION TO SEVER; DIRECTIONS TO
CLERK; DIRECTIONS TO PLAINTIFFS

v.
UNITED CONTINENTAL HOLDINGS, INC.,
et al.,

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Defendants.

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Before the Court is defendants United Air Lines, Inc. (“United”) and Continental

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Airlines, Inc.’s (“Continental”) “Motion to Sever Parties and Claims,” filed October 3, 2014.

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Plaintiffs have filed opposition, to which defendants have replied. Having read and

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considered the papers filed in support of and in opposition to the motion, the Court rules as

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follows.1
BACKGROUND

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The instant action is brought on behalf of twenty-three United employees who allege

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employment discrimination claims. Twenty-one of the plaintiffs are employed by United as

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Captains (collectively, “Captain Plaintiffs”), specifically, Odie Briscoe (“Briscoe”), Sal

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Crocker (“Crocker”), Mario Ecung (“Ecung”), Ken Haney (“Haney”), Terence Hartsfield

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By order filed December 2, 2014, the Court took the matter under submission.

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(“Hartsfield”), Terry Haynie (“Haynie”), Richard John (“John”), Eldridge Johnson

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(“Johnson”), Johnnie E. Jones, Jr. (“Jones”), Anthony Manswell (“Manswell”), Leon Miller

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(“Miller”), Karl Minter (“Minter”), Paul C. Noble (“Noble”), Xavier Palmer (“Palmer”), David

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Ricketts (“Ricketts”), Glen Roane (“Roane”), Frederick Robinson (“Robinson”), Leo

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Sherman (“Sherman), Lester Tom (“Tom”), Erwin Washington (“Washington”), and Darryl

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Wilson (“Wilson”). The remaining two plaintiffs are employed by United as Operations

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Supervisors (collectively, “Operations Supervisor Plaintiffs”), specifically, Annette Gadson

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(“Gadson”) and Ken Montgomery (“Montgomery”).

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The operative complaint is the Fourth Amended Complaint (“4AC”), filed January 3,

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2014, in which plaintiffs allege disparate treatment, disparate impact and hostile work

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environment claims. By order filed June 27, 2014, as amended August 5, 2014, the Court

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granted in part defendants’ motion to dismiss the 4AC, and, in so doing, dismissed certain

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of the disparate treatment claims and all of the disparate impact claims. The remaining

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claims challenge voluminous assertedly adverse employment decisions, and can be

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grouped in four categories.

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First, plaintiffs allege disparate treatment claims under 42 U.S.C. § 1981, Title VII

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and/or the Fair Employment and Housing Act (“FEHA”), based on the assertion that sixteen

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plaintiffs applied for and did not receive promotions to specified management positions

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(see 4AC ¶¶ 620, 629, 634), on account of racial discrimination (see 4AC ¶¶ 618, 627,

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634). The challenged positions were available at multiple locations throughout the United

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States over the course of more than a decade. (See, e.g., 4AC ¶ 488 (challenging

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Robinson’s failure in 1999 to receive “737 fleet captain position” in Colorado), ¶ 526

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(challenging Manswell’s failure to receive in 2001 “A-320 Line Check Airman promotion” in

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Virginia), ¶ 593 (challenging Sherman’s failure to receive in 2009 “737 Chief Pilot

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promotion” in Texas), ¶ 304 (challenging John’s failure to receive in 2012 “Flight Operations

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Duty Manager” position in New Jersey).) Under this theory, plaintiffs challenge a total of

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138 failures to promote, as follows:

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(1) Briscoe - challenging two failures to promote (see 4AC ¶¶ 574-575);
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(2) Crocker - challenging fourteen failures to promote (see 4AC ¶¶ 239-252);

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(3) Gadson - challenging one failure to promote (see 4AC ¶ 450);

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(4) Hartsfield - challenging one failure to promote (see 4AC ¶ 563);

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(5) John - challenging forty-six failures to promote (see 4AC ¶¶ 283-292, 294-318,

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320-330);

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(6) Johnson - challenging five failures to promote (see 4AC ¶¶ 188-192);

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(7) Jones - challenging twenty-two failures to promote (see 4AC ¶¶ 211-225);

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(8) Manswell - challenging three failures to promote (see 4AC ¶¶ 525-527);

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(9) Minter - challenging six failures to promote (see 4AC ¶¶ 410-415);

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(10) Montgomery - challenging three failures to promote (see 4AC ¶¶ 432-434);

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(11) Noble - challenging one failure to promote (see 4AC ¶ 355);

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(12) Roane - challenging six failures to promote (see 4AC ¶¶ 371-376);

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(13) Robinson - challenging one failure to promote (see 4AC ¶ 488);

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(14) Sherman - challenging fourteen failures to promote (see 4AC ¶¶ 593-604, 610);

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(15) Tom - challenging two failures to promote (see 4AC ¶¶ 393-394); and

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(16) Wilson - challenging eleven failures to promote (see 4AC ¶¶ 265-269).

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Second, on behalf of each of the twenty-three plaintiffs, plaintiffs allege disparate

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treatment claims under § 1981, Title VII and/or FEHA, based on the assertion that plaintiffs

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were “precluded,” on account of racial discrimination, from applying for promotions to

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specified management positions that defendants filled without a “general posting.” (See

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4AC ¶¶ 178, 619, 628, 634.) The challenged positions were available at multiple locations

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throughout the United States over the course of five years. (See, e.g., 4AC at 24:19-21

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(challenging various plaintiffs’ failures to receive in 2008 “Acting Chief Pilot position” in

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California); 4AC at 26:1-3 (challenging various plaintiffs’ failures to receive in 2012 “Flight

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Operations Duty Manager” position in Virginia).) Under this theory, plaintiffs challenge 226

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failures to promote, as follows:

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(1) Briscoe - challenging fourteen failures to promote (see 4AC at 24:16 - 26:3);

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(2) Crocker - challenging six failures to promote (see 4AC at 25:13 - 26:3);
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(3) Ecung - challenging fourteen failures to promote (see 4AC at 24:16 - 26:3);

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(4) Gadson - challenging two failures to promote (see 4AC at 26:11-12, 26:15-16);

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(5) Haney - challenging fourteen failures to promote (see 4AC at 24:16 - 26:3);

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(6) Hartsfield - challenging fourteen failures to promote (see 4AC at 24:16 - 26:3);

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(7) Haynie - challenging fourteen failures to promote (see 4AC at 24:16 - 26:3);

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(8) John - challenging six failures to promote (see 4AC at 25:13 - 26:3);

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(9) Johnson - challenging six failures to promote (see 4AC at 25:13 - 26:3);

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(10) Jones - challenging six failures to promote (see 4AC at 25:13 - 26:3);

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(11) Manswell - challenging fourteen failures to promote (see 4AC at 24:16 - 26:3);

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(12) Miller - challenging fourteen failures to promote (see 4AC at 24:16 - 26:3);

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(13) Minter - challenging six failures to promote (see 4AC at 25:13 - 26:3);

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(14) Montgomery - challenging two failures to promote (see 4AC at 26:11-12, 26:15-

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16);

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(15) Noble - challenging six failures to promote (see 4AC at 25:13 - 26:3);

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(16) Palmer - challenging fourteen failures to promote (see 4AC at 24:16 - 26:3);

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(17) Ricketts - challenging fourteen failures to promote (see 4AC at 24:16 - 26:3);

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(18) Roane - challenging six failures to promote (see 4AC at 25:13 - 26:3);

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(19) Robinson - challenging fourteen failures to promote (see 4AC at 24:16 - 26:3);

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(20) Sherman - challenging fourteen failures to promote (see 4AC at 24:16 - 26:3);

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(21) Tom - challenging six failures to promote (see 4AC at 25:13 - 26:3);

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(22) Washington - challenging fourteen failures to promote (see 4AC at 24:16 -

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26:3); and

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(23) Wilson - challenging six failures to promote (see 4AC at 25:13 - 26:3).

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Third, on behalf of each of the twenty-three plaintiffs, plaintiffs allege disparate

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treatment claims under § 1981, Title VII and/or FEHA, based on the assertion that plaintiffs

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did not receive “special assignments a.k.a. temporary management positions” (see 4AC

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¶ 176) on account of racial discrimination (see 4AC ¶¶ 622, 632, 634). The challenged

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assignments were performed at multiple locations throughout the United States over the
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course of more than five years. (See, e.g., 4AC at 27:8-10 (challenging various plaintiffs’

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failure to receive in May 2009 “Flight Manager” special assignment in Illinois); 4AC at 33:4-

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6 (challenging various plaintiffs’ failure to receive in August 2013 “Supervisor Airport

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Operations Ramp Service” special assignment in Virginia).) Under this theory, plaintiffs

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challenge 975 failures to receive special assignments, as follows:

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(1) Briscoe - challenging fifty failures to receive special assignments (see 4AC at
27:8 - 32:15, 87:20 - 25).
(2) Crocker - challenging forty-three failures to receive special assignments (see
4AC at 27:23 - 32:15);
(3) Ecung - challenging forty-eight failures to receive special assignments (see 4AC
at 27:8 - 32:15);
(4) Gadson - challenging four failures to receive special assignments (see 4AC
¶ 183);
(5) Haney - challenging forty-eight failures to receive special assignments (see 4AC
at 27:8 - 32:15);
(6) Hartsfield - challenging forty-eight failures to receive special assignments (see
4AC at 27:8 - 32:15);
(7) Haynie - challenging forty-eight failures to receive special assignments (see 4AC
at 27:8 - 32:15);
(8) John - challenging forty-three failures to receive special assignments (see 4AC
at 27:23 - 32:15);
(9) Johnson - challenging forty-three failures to receive special assignments (see
4AC at 27:23 - 32:15);
(10) Jones - challenging forty-three failures to receive special assignments (see 4AC
at 27:23 - 32:15);
(11) Manswell - challenging forty-eight failures to receive special assignments (see
4AC at 27:8 - 32:15);
(12) Miller - challenging forty-eight failures to receive special assignments (see 4AC
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at 27:8 - 32:15);
(13) Minter - challenging forty-three failures to receive special assignments (see 4AC
at 27:23 - 32:15);
(14) Montgomery - challenging four failures to receive special assignments (see 4AC
¶ 183);
(15) Noble - challenging forty-three failures to receive special assignments (see 4AC
at 27:23 - 32:15);
(16) Palmer - challenging forty-eight failures to receive special assignments (see
4AC at 27:8 - 32:15);
(17) Ricketts - challenging forty-eight failures to receive special assignments (see
4AC at 27:8 - 32:15);
(18) Roane - challenging forty-three failures to receive special assignments (see
4AC at 27:23 - 32:15);
(19) Robinson - challenging forty-eight failures to receive special assignments (see
4AC at 27:8 - 32:15);
(20) Sherman - challenging fifty failures to receive special assignments (see 4AC at
27:8 - 32:15, 87:20 - 25)
(21) Tom - challenging forty-three failures to receive special assignments (see 4AC
at 27:23 - 32:15);
(22) Washington - challenging forty-eight failures to receive special assignments
(see 4AC at 27:8 - 32:15);
(23) Wilson - challenging forty-three failures to receive special assignments (see
4AC at 27:23 - 32:15).
Fourth, and lastly, on behalf of Haynie, plaintiffs allege said plaintiff has been

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subjected to a hostile work environment on account of race, for a period of twelve years.

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(See 4AC ¶¶ 518, 641.)

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In sum, in addition to alleging one hostile work environment claim, plaintiffs
challenge a total of 1139 failures to receive promotions and special assignments.
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DISCUSSION

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By the instant motion, defendants argue plaintiffs’ claims are not properly joined in

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one action under Rule 20(a) of the Federal Rules of Civil Procedure, or, alternatively, that if

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joinder is proper, severance is appropriate.

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“Under Federal Rule of Civil Procedure 20, joinder is proper if (1) the plaintiffs

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assert[ ] a right to relief arising out of the same transaction and occurrence and (2) some

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question of law or fact common to all the plaintiffs will arise in the action.” Coleman v.

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Quaker Oats Co., 232 F.3d 1271, 1296 (9th Cir. 2000). “Even once these requirements are

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met, a district court must examine whether permissive joinder would comport with the

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principles of fundamental fairness or would result in prejudice to either side.” Id. (internal

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quotation and citation omitted) (affirming order severing age discrimination claims of ten

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plaintiffs, each of whom had been terminated as part of reduction in force; finding

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“likelihood of prejudice [to defendant] and confusion”).

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Here, it would appear joinder is proper under Rule 20, at least as to some of the

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claims alleged on behalf of the Captain Plaintiffs, as each of the Captain Plaintiffs bases his

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disparate treatment claims in part on his failure to receive some of the same promotions

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and special assignments on which the other Captain Plaintiffs base their claims. (See, e.g.,

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4AC at 24:6-10, 25:9 - 26:3 (identifying six “managerial positions” for which each of the

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Captain Plaintiffs would have applied had positions been posted as available).)

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Nonetheless, and, even assuming all claims brought by all of the Captain Plaintiffs, as well

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as all claims brought by both of the Operations Supervisor Plaintiffs, can, under Rule 20, be

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joined in a single action, the Court, for the reasons discussed below, finds such permissive

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joinder does not comport with the principles of fundamental fairness and would result in

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prejudice to defendants.

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As in Coleman, in which, as noted, ten terminated employees sought to join age

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discrimination claims in one action, the employer here “would be prejudiced by having all

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[twenty-three] plaintiffs testify in one trial.” See Coleman, 232 F.3d at 1296. As the

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Coleman court observed, “even the strongest jury instructions could not have dulled the
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impact of a parade of witnesses, each recounting his contention that defendant laid him off

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because of his [protected status].” See id. (internal quotations and citation omitted); see

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also Henderson v. AT&T Corp., 918 F. Supp. 1059, 1061, 1063-64 (S.D. Tex. 1996)

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(holding, assuming claims of five plaintiffs alleging employment discrimination claims could

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be joined, severance was appropriate due to undue prejudice to defendant; finding “there

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[was] a great danger that the jury [would] find [the employer] liable based on the sheer

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number of witnesses testifying about its purported wrongdoing”).

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Further, there exists a “danger of jury confusion.” See Coleman, 232 F.3d at 1296
(holding “danger of jury confusion” supports severance of otherwise properly joined

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claims). Here, as in Coleman, plaintiffs will necessarily offer individualized evidence to

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support the claims of each plaintiff, which will require the jury, for each posted position, “to

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examine individually [each plaintiff’s] employment history as well as the explanations given

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by [defendants] for not [selecting] him or her, explanations that would require the testimony

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of each employee’s supervisors and raters,” see id., as well as the testimony of any other

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individual(s) involved in the selection process. Additionally, as to each unposted position

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and assignment as to which a plaintiff bases his or her claims, such plaintiff will be required

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to offer individualized evidence to support his or her allegation that he or she would have

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applied for such unposted position or assignment. See Williams v. Giant Food Inc., 370

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F.3d 423, 432 (4th Cir. 2004) (holding, where employer has not posted available

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“promotion opportunities,” plaintiff “cannot be treated as if she had applied for those

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promotions unless she can show that she would have applied had she known about them”).

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Moreover, a great part of such individualized evidence likely would be inadmissible to

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support the claims of other plaintiffs, thus necessitating a great number of limiting

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instructions, which, after a certain point, cannot meaningfully assist the jury in keeping the

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evidence supporting any one plaintiff’s claims separate from the evidence supporting the

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claims of the other plaintiffs. See Henderson, 918 F. Supp. at 1063-64 (holding, if

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employment discrimination claims of multiple plaintiffs were to be tried together, “the jury

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may simply resolve the confusion by considering all of the testimony to pertain to all the
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claims, despite any limiting instructions”).
The Court further notes that the joinder of twenty-three individual plaintiff’s claims in

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a single action appears to be the primary reason the instant case has remained mired at

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the pleading stage for well over two years, as it has taken plaintiffs five attempts to

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sufficiently state claims on behalf of each plaintiff. A delay of such length does not assist

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any party. See Sibron v. New York, 392 U.S. 40, 57 (1968) (observing “litigation is better

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conducted when the dispute is fresh and additional facts may, if necessary, be taken

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without a substantial risk that witnesses will die or memories fade”). Even though the Court

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ultimately has found the 4AC includes sufficiently pleaded claims on behalf of each plaintiff,

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there is no indication the action will now proceed to resolution within an acceptable time

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frame for actions alleging employment discrimination claims.

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Indeed, because the ninety-nine page 4AC remains a pleading that includes a large

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number of dismissed claims, and, given the manner in which the claims are set forth

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therein, e.g., multiple paragraphs comprising both dismissed and non-dismissed claims, it

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would be difficult for the parties to use that document as a means of framing the issues for

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purposes of pretrial proceedings and trial, thus necessitating further revision of the

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operative complaint before the case could proceed as a joined action. (See, e.g., 4AC at

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28:17-19, ¶¶ 622, 632, 637 (alleging, on behalf of each of the Captain Plaintiffs, disparate

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treatment claims under Title VII, FEHA and § 1981, based on failure to receive special

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assignment for “Sabre Training at LAX”); Order, filed August 5, 2014, at 16:14-19

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(dismissing Title VII and FEHA claims based on failure to receive special assignment for

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“Sabre Training at LAX” brought on behalf of Crocker, John, Johnson, Jones, Noble and

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Roane; dismissing FEHA claims based on failure to receive said special assignment

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brought on behalf of Haynie and Tom).) Under such circumstances, defendants’ prediction

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that “[c]ountless hours will be needed to decipher the precise scope and nature of [the]

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claims asserted by each individual [p]laintiff” (see Defs.’ Reply, filed November 7, 2014, at

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2:24-25), which effort will entail “interlineat[ing] the [4AC] for each of the twenty-three

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[p]laintiffs to determine which allegations remain pertinent to which [p]laintiffs” (see Defs.’
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Mot., filed October 3, 2014, at 25:4-5), cannot be characterized as hyperbole. See, e.g.,

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McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir. 1996) (noting, as to “confusing”

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complaint, judge and defendants would, as “a practical matter,” be required to “prepare

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outlines to determine who is being sued for what”; further noting defendants are “then put

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at risk that their outline differs from the judge’s, that plaintiffs will surprise them with

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something new at trial which they reasonably did not understand to be in the case at all,

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and that res judicata effects of settlement or judgment will be different from what they

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reasonably expected”).
Further complicating matters is the likelihood of extensive discovery, with attendant

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motion practice, as well as, potentially, the equivalent of twenty-three motions and cross-

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motions for summary judgment and/or adjudication. Although plaintiffs contend joinder

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would “permit[ ] more economical discovery of common facts” (see Pls.’ Opp. at 9:16-23),

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joinder is not the only procedural mechanism that will permit discovery and other pretrial

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matters to proceed in a coordinated manner. Where appropriate, two or more of the

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severed cases can be related, see Civil L.R. 3-12, which assignment, upon a proper

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showing, would allow for coordination of discovery and/or for other pretrial matters. See

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Coleman, 232 F.3d at 1296-97 (rejecting plaintiffs’ argument that severance caused

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plaintiffs to be subjected to “duplicate discovery,” where three cases remaining in district

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were assigned to same district judge, and parties thereby had “benefitted from common

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discovery and counsel”).
Accordingly, defendants’ motion for severance will be granted. Specifically, the

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claims of all plaintiffs, other than Johnson, will be severed from the instant action, and the

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instant action will proceed only on behalf of Johnson. Additionally, each plaintiff will be

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directed to file a Fifth Amended Complaint, setting forth his or her remaining claims, in his

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or her individual action.

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CONCLUSION

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For the reasons stated above, defendants’ motion to sever is hereby GRANTED, as
follows:
1. The instant action shall proceed only on the remaining claims alleged on behalf of
plaintiff Johnson.
2. As to each of the other twenty-two plaintiffs named in the 4AC, the Clerk is

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hereby DIRECTED to open a new case, to waive the filing fee for each new case, and to

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file in each such case a copy of the 4AC (see Doc. No. 90), along with a copy of the instant

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order. All filings in the instant action, up to and including the instant order, shall apply to

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said new cases.
3. In each new case, as well as in the above-titled case, the named plaintiff is hereby

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DIRECTED to file, no later than March 2, 2015, a Fifth Amended Complaint in which such

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plaintiff repleads his/her remaining claims. Each such plaintiff may not add new claims or

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new defendants without leave of court. See Fed. R. Civ. P. 15(a)(2).

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IT IS SO ORDERED.

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Dated: February 2, 2015
MAXINE M. CHESNEY
United States District Judge

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