IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

CALVIN FLUKER, RICARDO ) 

WRIGHT, BERYL JACKSON, ) 

TRACEY MARTIN, LISA ) 

PITCHFORD, KIMBERLY LOVE, ) 

 ) 

 Plaintiffs, ) 

 ) 

v. ) CIVIL ACTION NO.: 

 ) 2:06cv785-MHT 

U.S. FOODSERVICE, INC. and ) 

U.S. FOODSERVICE, INC. - ) 

MONTGOMERY DIVISION, ) 

 ) 

 Defendants. ) 

DEFENDANT’S MOTION TO SEVER

 Plaintiffs Calvin Fluker, Ricardo Wright, Beryl Jackson, Tracey Martin, Lisa 

Pitchford, and Kimberly Love filed this lawsuit against defendant U.S. 

Foodservice, Inc.1

 (“U.S. Foodservice” or “defendant”) alleging that defendant 

discriminated against them because of their race and/or gender in violation of 42 

U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. Plaintiff Fluker 

additionally alleges that defendant created a hostile work environment against him 

because of his race in violation of 42 U.S.C. § 1981 and Title VII of the Civil 

Rights Act of 1964. Plaintiffs also allege that they have been retaliated against for 

 

1

 Plaintiffs also named “U.S. Foodservice, Inc. – Montgomery Division” as a defendant. 

However, no such legal entity exists. 

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filing Charges of Discrimination. However, plaintiffs have varied factual 

backgrounds and make distinct allegations against defendant. Therefore, plaintiffs’ 

claims are not properly joined and are due to be severed pursuant to Rule 21 of the 

Federal Rules of Civil Procedure for the following reasons: 

I. FACTUAL BACKGROUND2

 AND LEGAL ALLEGATIONS OF THE 

INDIVIDUAL PLAINTIFFS3

 While each plaintiff is currently employed by defendant, each plaintiff has a 

distinct employment background, including different job titles, hire dates, 

comparators, and alleged denied promotions. Further, the plaintiffs worked in 

different departments and had different supervisors. Additionally, each individual 

plaintiff has distinct legal claims. For example, only plaintiff Fluker alleges he 

was subjected to a hostile work environment. Four of the other plaintiffs allege 

they were discriminated against because of their sex in addition to their race. 

Moreover, the facts surrounding the alleged adverse employment actions the 

plaintiffs claim they suffered are different for each plaintiff. 

 

2

 For purposes of this Motion only, defendant accepts plaintiffs’ versions of their factual 

backgrounds and legal allegations as contained in their Complaint. 

3

 The factual background and legal allegations are taken from the Complaint; however, it is often 

difficult to discern whether the individual plaintiffs are alleging discrimination on the basis of 

race or sex and/or retaliation. The difficulty in comprehending the individual plaintiffs’ claims 

further show that the plaintiffs’ allegations are distinct and separate and should be severed. 

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A. Calvin Fluker 

 Plaintiff Fluker has been employed by defendant as a National Account 

Executive since 1997. (Complaint ¶ 17). Plaintiff Fluker alleges that he was 

subjected to a hostile work environment based on his race. (Complaint ¶¶ 18-20). 

Plaintiff Fluker also alleges that Joe Chambliss (Vice President of Sales) denied 

him the opportunity to replace Dale Ward, a salesperson, because of his race and 

that, as a result of defendant not posting certain jobs, less qualified white 

employees received promotions. (Complaint ¶¶ 21-23). 

 Plaintiff Fluker also alleges that he has been retaliated against for filing a 

Charge of Discrimination because he has been isolated and ignored, disciplined 

unfairly, excluded from assignments, physically threatened, and placed on a 

performance improvement plan. (Complaint ¶ 23). Plaintiff Fluker claims that Joe 

Chambliss recruited three sales trainees to document comments being made by 

him. (Complaint ¶ 23). Finally, plaintiff Fluker alleges that defendant is 

retaliating against him by seeking to fill a District Manager job in District 2 with 

an African American, who has not filed a Charge of Discrimination. (Complaint ¶ 

24). 

 Plaintiff Fluker makes no allegations of sex discrimination. 

 

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 B. Ricardo Wright 

Defendant hired plaintiff Wright as a Sales Trainee in 1997. (Complaint 

¶ 27). Plaintiff Wright received a promotion to Territory Manager in November 

1998 and continues to work as a Territory Manager. (Complaint ¶ 28). On June 1, 

2000, plaintiff Wright was moved from a salaried Territory Manager to a Territory 

Manager compensated solely by sales commissions; however, plaintiff Wright 

claims he was not given a transition period while other white Territory Managers 

were given a transition period. (Complaint ¶¶ 30-31). Plaintiff Wright claims that 

he has been assigned to lower income black areas of Birmingham while white sales 

representatives have been given more lucrative sales territories. (Complaint ¶¶ 32-

33). Plaintiff Wright also claims that white Territory Managers are treated better 

than him. (Complaint ¶¶ 34-38). Plaintiff Wright alleges that his African 

American clients are treated less favorably than the clients of white Territory 

Managers. (Complaint ¶¶ 34-38). Additionally, plaintiff Wright alleges that he 

has been denied the opportunity to advance to the job of District Sales Manager. 

(Complaint ¶ 39). 

 Plaintiff Wright claims that, prior to filing his Charge of Discrimination, 

defendant did not investigate his claims that he was being discriminated against 

because of his race. (Complaint ¶¶ 40-42). Plaintiff Wright then claims that, after 

filing his Charge of Discrimination, he has been retaliated against in not receiving 

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recap reports and having his invoices lost. (Complaint ¶¶ 40-42). Finally, plaintiff 

Wright claims that defendant is retaliating against him by considering an AfricanAmerican who has not filed a Charge of Discrimination for a District Manager job 

in District 2. (Complaint ¶ 43). 

 Plaintiff Wright makes no claims of a hostile work environment or sex 

discrimination. 

 C. Beryl Jackson

 Defendant hired plaintiff Jackson on January 29, 1990 and promoted her to 

Territory Manager in 1997. (Complaint ¶ 44). Plaintiff Jackson claims she was 

not assigned a territory or provided a “step down transition” when she made the 

transition from salaried Territory Manager to commissioned Territory Manager. 

(Complaint ¶ 45). Plaintiff Jackson alleges that whites receive higher commissions 

and that she was denied the opportunity to work in two lucrative sales territories 

that white male Territory Managers were allowed to work. (Complaint ¶ 47). 

Plaintiff Jackson also alleges that her clients are given less desirable treatment. 

(Complaint ¶¶ 48-53). Further, plaintiff Jackson claims that she has been denied 

District Sales Manager jobs that have been filled by less qualified whites. 

(Complaint ¶ 54). Finally, plaintiff Jackson alleges that defendant is planning to 

fill a District Sales Manager job in District 2 with an African American male who 

has not filed a Charge of Discrimination in retaliation for filing a Charge of 

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Discrimination and that defendant selected a male to serve as a mentor instead of 

her. (Complaint ¶ 55). 

 Plaintiff Jackson makes no hostile environment claims. 

 D. Lisa Pitchford

 Plaintiff Pitchford was hired by defendant as a bookkeeper in June 1998. 

(Complaint ¶ 56). Plaintiff Pitchford alleges that she was subsequently denied 

promotions to payroll clerk, credit clerk, credit manager and other positions that 

were filled by less qualified white employees. (Complaint ¶ 57). Plaintiff 

Pitchford was promoted to Sales Trainee in July 2005; however, she claims that 

she has spent more time covering for sick or absent Territory Managers than white 

trainees. (Complaint ¶¶ 57-58). Plaintiff Pitchford also claims she has been 

provided inferior leads and accounts than white trainees and that defendant has 

provided lower quality service to her accounts. (Complaint ¶ 58). Plaintiff 

Pitchford alleges that he pay has been reduced because of the treatment of white 

employees. (Complaint ¶ 58). Finally, plaintiff Pitchford claims that, after her 

name was mentioned in an EEOC investigation, defendant has retaliated against 

her by unfairly disciplining her and excluding her from meetings. (Complaint ¶ 

59). 

 Plaintiff Pitchford makes no allegations of a hostile work environment. 

 

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 E. Kimberly Love 

 Plaintiff Love has been employed by defendant as a credit assistant since 

July 2000. (Complaint ¶ 60). Plaintiff Love alleges that she has been denied the 

opportunity to apply for jobs, such as Territory Manager, because those jobs are 

not posted. (Complaint ¶¶ 61-62). Additionally, plaintiff Love alleges that she has 

never been offered a promotion. (Complaint ¶¶ 61-62). Plaintiff Love also claims 

that she and a white employee were offered pay increases if they took on more 

responsibility but that the white employee was offered a higher pay increase. 

(Complaint ¶¶ 62-63). Further, plaintiff Love alleges that she has been denied 

training that has been given to white employees. (Complaint ¶¶ 62-63). 

Additionally, plaintiff Love claims that she was retaliated against for filing a 

Charge of Discrimination because she was denied a promotion to a credit card 

manager job because she did not have a four year degree, and then, the four year 

degree requirement was waived to allow a white male to fill the job. (Complaint 

¶¶ 64-65). Plaintiff Love also alleges that she is being discriminated against in job 

assignments because of her race. (Complaint ¶¶ 64-65). Finally, plaintiff Love 

alleges that a white male was promoted to credit manager in place of her. 

(Complaint ¶ 66). 

 Plaintiff Love makes no allegations of a hostile work environment. 

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 F. Tracey Martin

 Plaintiff Martin was hired by defendant as an Accounting Clerk in August 

1997. (Complaint ¶ 67). Plaintiff Martin alleges that she has been denied 

promotions to an Assistant Controller, a Credit Manager, a sales position, and an 

Accounts Receivable Manager job in favor of whites and males. (Complaint ¶¶ 

68-71). Martin was promoted to a Staff Accountant II job in late 2005; however, 

plaintiff Martin claims that she has no supervisory responsibilities, that she is 

performing much the same work that she was previously performing, and that the 

job was created as a result of her filing a Charge of Discrimination. (Complaint ¶¶ 

71-72). Finally, plaintiff Martin alleges that her supervisor, Shelby Pierce, 

monitors her work more closely than white employees or employees who have not 

filed a Charge of Discrimination. (Complaint ¶ 73). 

 Plaintiff Martin makes no allegations of a hostile work environment. 

II. LEGAL ARGUMENT 

Plaintiffs make individual claims that arise out of distinct transactions and 

occurrences and do not have common questions of law or fact. Therefore, 

plaintiffs’ claims were not properly joined and should be severed pursuant to Rule 

21 of the Federal Rules of Civil Procedure. 

A. Legal Standards 

Federal Rule of Civil Procedure 21 provides as follows: 

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Misjoinder of parties is not ground for dismissal of an action. Parties 

may be dropped or added by order of the court on motion of any party 

or of its own initiative at any stage of the action and on such terms as 

are just. Any claim against a party may be severed and proceeded 

with separately. 

For plaintiffs’ claims to have been properly joined, they must satisfy the 

requirements of Rule 20(a) of the Federal Rules of Civil Procedure, which has two 

requirements for proper joinder: (1) there must be a right to relief arising out of the 

same transaction, occurrence or series of transactions or occurrences and (2) there 

must be a question of law or fact common to all of the plaintiffs which will arise 

out of the action. See Fed. R. Civ. P. 20(a). Both requirements must be satisfied 

for there to be proper joinder. Grayson v. K-Mart Corp., 849 F. Supp. 785, 787 

(N.D. Ga. 1994). Further, “[i]n ascertaining whether a particular factual situation 

constitutes a single transaction or occurrence for purposes of Rule 20, a case by 

case approach is generally pursued.” Grayson, 849 F. Supp. 785, 787. However, 

courts have generally examined the following factors in determining whether a 

particular factual situation constitutes a single transaction or occurrence: 

(1) whether the alleged discrimination occurred during different time periods; 

(2) whether different supervisors made the challenged decisions; (3) whether the 

alleged discrimination happened in geographically removed places; (4) whether the 

actual acts of discrimination are related; (5) whether there are different types of 

adverse employment actions alleged; (6) whether more than one type of 

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discrimination is alleged; and (7) whether a company-wide policy is alleged. See

Alexander v. Fulton County, Georgia, 207 F.3d 1303, 1324 (11th Cir. 2000); 

Ferger v. C.H. Robinson Worldwide, Inc., 2006 WL 2091015, *1 (W.D. Wash. 

July 25, 2006); Smith v. Northeastern Illinois University, 388 F. 3d 559, *2 (N.D. 

Ill. February 28, 2002). Additionally, allegations of a hostile work environment 

are tantamount to allegations that there was a widely-held policy of discrimination. 

Smith, 388 F. 3d 559, *2. However, only one plaintiff has made a hostile work 

environment claim, so that does not support a common transaction or occurrence 

claim. 

 To satisfy the second requirement of Rule 20(a), plaintiffs must show that 

there are common questions of law and facts among their cases. However, simply 

making claims based on the same general theories of law is not sufficient. 

Grayson, 849 F. Supp. 785, 789. 

B. Legal Analysis 

 While plaintiffs all worked in the Montgomery Division of U.S. 

Foodservice, Inc., the similarities stop there. Plaintiffs’ claims neither arise from 

the same transaction, occurrence or series of transactions or occurrences, nor are 

there common questions of law and facts among plaintiffs’ cases. Therefore, 

plaintiffs’ claims are due to be severed pursuant to Federal Rule of Civil Procedure 

21(a). 

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 The facts in this case are similar to the facts in Bailey v. Northern Trust Co., 

196 F.R.D. 513 (N.D. Ill. 2000). In Bailey, the Court found that the plaintiffs’ 

allegations did not arise from the same transaction or occurrence because 

[a]lthough each plaintiff worked in the same department of Northern 

Trust, no single team leader or section manager is implicated in all 

five of the plaintiffs’ claims. Rather, the employment actions 

complained of were made by different section managers and team 

leaders at different times over a period of at least fifteen months. The 

types of adverse employment actions are likewise varied – allegations 

include unequal pay, retaliation, unfair disciplinary warnings, 

increased job duties, job threats, discrimination in performance 

evaluations, wrongful termination, denial of promotional 

opportunities, and denial of training. Plaintiffs were employed in 

various positions as securities technicians and team leaders within 

different teams. There is no evidence either of a discrete policy that 

affected each plaintiff or any causal link between a common and 

identifiable wrongful act on part of the defendant and the adverse 

actions taken with respect to each plaintiff. Even further, no plaintiff 

alleges that there was any relationship between their terminations. 

Bailey, 196 F.R.D. at 516. The Court further found that because the factual and 

legal questions between the plaintiffs and defendant were based upon wholly 

separate acts, the second requirement of Rule 20(a) of the Federal Rules of Civil 

Procedure was not met. Therefore, the Court severed plaintiffs’ claims. 

 Like in Bailey, plaintiffs’ claims do not arise out of the same transaction or 

occurrence. While the plaintiffs are still employed with defendant, their hire dates 

range over a decade from 1990 to 2000, and each plaintiff makes allegations of 

discrimination arising throughout their employment. As such, the alleged 

discrimination did not occur during the same time period. Plaintiffs do not allege 

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that they had the same supervisors or decision-makers. In fact, the plaintiffs either 

do not name their supervisors or in the case of plaintiffs Fluker and Martin, they 

name different supervisors. Moreover, the plaintiffs, with the exception of 

plaintiffs Wright and Jackson, had different job titles, so their supervisors would 

have been different. Therefore, different supervisors were involved in the 

decisions and practices plaintiffs are alleging were discriminatory. 

 Further, plaintiffs have failed to show that the alleged acts of discrimination 

are related. Plaintiffs do not allege that one person carried out the alleged 

discrimination. Further, as previously explained, plaintiffs do not have common 

supervisors, and their job titles are different and include National Account 

Executive, Territory Manager, Sales Trainee, credit assistant, and accounting clerk. 

Each plaintiff complains about the alleged denial of promotions, and the alleged 

promotions vary. The other alleged discriminatory acts also vary from plaintiff to 

plaintiff and include differences in discipline, pay, training, commissions, 

territories, and general treatment. Moreover, four of the plaintiffs allege sex and 

race discrimination while the other two allege race discrimination but not sex 

discrimination. Further, while all plaintiffs make allegations of retaliation, the 

alleged retaliatory conduct is distinct to each plaintiff. As a result, plaintiffs have 

failed to show that the alleged acts of discrimination are related. 

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 Also, the plaintiffs allege different adverse employment actions. In their 

discrimination complaints, the plaintiffs make various claims regarding pay, 

discipline, performance issues, and different treatment from white and/or male coemployees. Additionally, while each plaintiff alleges they were denied 

promotions, they complain about the denial of different promotions. Further, the 

alleged retaliatory conduct also includes the alleged denial of promotions, 

discipline, performance, and general treatment, which is distinct to each individual 

plaintiff. As a result, there are different adverse employment actions alleged. 

 Additionally, more than one type of discrimination is alleged. For example, 

plaintiff Fluker alleges a hostile work environment. The four female plaintiffs 

allege race and sex discrimination while the two male employees allege only race 

discrimination. Moreover, the retaliation claims of each plaintiff are distinct in the 

manner in which they claim they were retaliated against. As such, the plaintiffs 

allege more than one type of discrimination, and the allegations of discrimination 

are different. 

 Finally, while plaintiffs generally allege that U.S. Foodservice had a “pattern 

and practice” and policy of discrimination, plaintiffs have not alleged that they 

were subjected to a systemic pattern or policy of discrimination by a common 

decision-maker. As such, plaintiffs’ allegations of a “policy” of discrimination are 

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insufficient to show that plaintiffs’ claims arise out of the same transaction or 

occurrence. 

 For these reasons, plaintiffs cannot show that their allegations arise out of 

the same transaction or occurrence or the same series of transactions or 

occurrences, and their claims are due to be severed pursuant to Rule 21 of the 

Federal Rules of Civil Procedure. See Milledge v. Rayonier, 2005 WL 1866157, 

*2 (S.D. Ga. Aug. 5, 2005) (ordering severance because plaintiff worked in a 

different department, performed different job, under a different supervisor, and the 

witnesses and documentary evidence did not appear to overlap); Grayson, 849 F. 

Supp. at 788-89 (finding that plaintiffs’ claims did not arise out of a common 

transaction or occurrence and severing them because the cases involved eleven 

individuals in four states; the decision to demote each plaintiff was derived within 

the context of the business circumstances of each plaintiff’s store; and three 

different regional managers participated in the eleven demotion decisions at issue); 

Barner v. City of Harvey, 2003 WL 1720027 (N.D.Ill. March 31, 2003) (severing 

plaintiffs’ claims because plaintiffs’ claims for discharge were for different 

reasons, under different circumstances, and with different supervisors); Maclin v. 

Northern Telecom, Inc., 1996 WL 495558 (N.D.Ill. Aug. 28, 1996) (severing 

plaintiffs’ claims for not arising out of the same transaction or occurrence because 

the conduct occurred in different time periods and involved different conduct). 

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 As previously explained, plaintiffs’ claims are factually and legally distinct. 

The plaintiffs have different employment histories, job duties, supervisors, legal 

claims, and alleged adverse employment actions. In fact, some plaintiffs claim 

they were discriminated against on the basis of their race and sex while others just 

claim they were discriminated against on the basis of their race. Moreover, 

plaintiff Fluker makes allegations of a hostile work environment, but no other 

plaintiffs make such allegations. As a result, despite plaintiffs’ attempts, they have 

failed to show that there are common questions of law and facts among their cases. 

Therefore, plaintiffs cannot prove the requirements of Rule 20(a), and their claims 

are due to be severed. See Grayson, 849 F. Supp. at 789 (finding that each 

demotion decision was a discrete act by defendant and the factual and legal 

questions between plaintiffs were wholly separate and that there was a complete 

lack of common questions of fact or law); Thompson v. Sanderson Farms, Inc., 

2006 WL 2559852, *4 (S.D. Miss. Sept. 1, 2006) (ordering severance because 

there was not a common question of law or fact pertaining to all the plaintiffs in 

the lawsuit). 

III. CONCLUSION

 For the foregoing reasons, plaintiffs’ claims are not properly joined pursuant 

to Rule 20(a) of the Federal Rules of Civil Procedure. Therefore, defendant 

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respectfully requests that the Court sever plaintiffs’ claims pursuant to Rule 21 of 

the Federal Rules of Civil Procedure. 

Respectfully submitted, 

 /s/ Tammy L. Baker 

 Tammy L. Baker, ASB-9522-B62T 

 E-Mail: tbaker@constangy.com

 Direct Dial: 205-226-5466 

 Tamula R. Yelling, ASB-9447-E61T 

 E-Mail: tyelling@constangy.com 

 Direct Dial: 205-226-5471 

 CONSTANGY, BROOKS & SMITH, LLC 

 One Federal Place, Suite 900 

 1819 Fifth Avenue North 

 Birmingham, Alabama 35203 

 Facsimile (205) 323-7674 

ATTORNEYS FOR DEFENDANT 

U.S. FOODSERVICE, INC. 

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CERTIFICATE OF SERVICE

I hereby certify that on October 9, 2006, I electronically filed the foregoing 

with the Clerk of the Court using the CM/ECF system that will send notification of 

such filing to the following: 

Jon C. Goldfarb, Esq. 

Maury S. Weiner, Esq. 

Ethan R. Dettling, Esq. 

Wiggins, Childs, Quinn & Pantazis, LLC 

301 19th Street North 

Birmingham, AL 35203 

 /s/ Tammy L. Baker 

Counsel of Record 

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