In the following case, a procedural error resulted in the dismissal of two employees’ claims against their employer. However, one of the employees saw her case revived after the other employee abandoned her claim while the issue was being appealed.
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Fired Employees Join Together to Sue Former Employer
Rosa Jensen, who worked at Home Depot, claims that in July 2010, she was injured at work when a customer pushed open a bathroom door, striking her shoulder, elbow, and wrist. She says that after her medical leave, she asked for an accommodation to resume work, but Home Depot wouldn’t permit her to return. She was terminated a short time later, in November 2013.
Another Home Depot employee, Linda Kerr, claims that she was in pain on April 3, 2013, because she had two abscessed teeth and a tumor in her mouth and neck area. Her doctor gave her a note taking her off work that day. She was scheduled to work a four-hour shift on April 3, but she had only two hours of sick leave left.
Kerr claims that when she provided the doctor’s note to the store manager and asked for the day off, her request was denied. She also claims that she gave her immediate supervisor the doctor’s note and requested the day off, but her request was again denied because she didn’t have sufficient leave. After she didn’t work her shift on April 3, she was terminated on April 6 for attendance violations.
The two former employees filed a lawsuit against Home Depot and its managers, claiming disability discrimination, wrongful termination, and eight other claims. Home Depot challenged the complaint, arguing that Jensen and Kerr were “misjoined.”
Employer Challenges two Claims Brought in one Lawsuit
Misjoinder is a legal term that means the parties are making multiple demands to enforce rights that are distinct and unrelated and should therefore be brought in separate lawsuits. Strategically, an employer may not want to go to trial and have a jury hear two different claims about how it allegedly mistreated more than one employee, for fear that the jury might conclude there’s a common pattern of mistreatment. Essentially, hearing two different tales of claimed mistreatment might lead a jury to give more credibility to each of the claims.
Home Depots challenge was styled as a demurrer or, in the alternative, a motion to sever. A demurrer is a legal tool used to seek the dismissal of a claim, while a motion to sever seeks to split the claims into separate lawsuits.
Home Depot asserted that Jensen and Kerr’s claims didn’t arise out of a single transaction or a single series of transactions and didn’t raise common issues of law or fact. Consequently, it argued, their claims shouldn’t be part of the same lawsuit and must be brought individually. Jensen and Kerr argued that it was proper for their claims to be brought together in one lawsuit because they were both suing Home Depot for disability discrimination.
The trial court agreed with Home Depot and initially ruled that Jensen and Kerr couldn’t amend their complaint to highlight the similarities in their claims. However, Jensen and Kerr argued that they could demonstrate that they were both raising the same legal issues, and discovery (the pretrial exchange of evidence) would be identical because their cases involved a pattern of Home Depot terminating employees with disabilities. The trial court noted that the events occurred at different times and for different reasons and that the claims were distinctly different, but it still gave Jensen and Kerr a chance to amend the complaint.
The amended complaint fared no better. Jensen and Kerr stated in the new complaint that they worked at the same store in 2013, they both suffered from medical issues, they both told the store manager that they needed an accommodation or leave for a medical issue, and they were both terminated. Home Depot again asserted that the claims were misjoined and should be brought in separate lawsuits because they didn’t arise out of the same transaction or involve a common issue of law or fact.
Jensen and Kerr didn’t oppose Home Depot’s argument. Because there was no request for oral argument, the court ruled on the demurrer without hearing anything from Jensen and Kerr. The court found that the new complaint wasn’t much different from their first complaint and contained no explanation of how it could be further amended to fix the problems. The court therefore found that Jensen and Kerr were misjoined and dismissed the complaint in its entirety.
Case Is Revived
Jensen and Kerr appealed, but Kerr dismissed her claim after the appeal was filed. Jenson argued on appeal that she didn’t oppose Home Depot’s challenge to the complaint because she thought the court would sever the claims into individual cases instead of dismissing them. But Home Depot had only filed a demurrer to the amended complaint—it didn’t seek to sever the complaint as it had done the first time. The appeals court concluded that the trial court acted reasonably in finding that Jensen and Kerr were misjoined and dismissing the claims.
However, because Kerr dismissed her claim on appeal, there was no more misjoinder, and the case was sent back to the trial court to proceed on the merits of Jenson’s claim. In a last-ditch effort to avoid revival of the claim, Home Depot asked the court to dismiss the appeal because the issue of misjoinder was no longer at issue since Kerr had dismissed her claim. The court refused, noting that although the issue of misjoinder was no longer an issue, Jensen’s appeal was based on whether the trial court’s decision to dismiss rather than sever the case was proper and that decision was properly decided as part of the appeal. Jensen v. The Home Depot, Inc. (California Court of Appeal, 4th Appellate District, 5/31/18).
Bottom Line
Procedural court rulings can often lead to strange results. When two employees can proceed in a single action isn’t always a clear call. The fact that neither party requested an oral hearing before the trial court allowed the court of appeal to issue an order that Jenson didn’t anticipate. But because she appealed and Kerr didn’t, Jenson got relief from the trial court’s misjoinder award. The merits of the dispute are very important, but the outcome often rests on procedural grounds.
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The authors can be reached at Clark Hill LLP in Los Angeles and San Diego respectively, bkahn1@clarkhill.com and tbokmuller@clarkhill.com.