140512.1 

1 

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 OPPOSITION TO PLAINTIFFS’

MOTION FOR LEAVE TO AMEND COMPLAINT

Plaintiffs seek to amend their Complaint to add Reshanda Brown (“Brown”) 

as an additional party plaintiff. The proposed Amended Complaint asserts Title 

VII (race and/or gender) and 42 U.S.C. § 1981 claims arising out of defendant U.S. 

Foodservice, Inc.’s (“U.S. Foodservice” or “defendant”) decision not to offer 

temporary worker Brown a permanent job. U.S. Foodservice opposes plaintiffs’ 

Motion for Leave to Amend because Brown cannot meet the joinder requirements 

for Rule 20(a) of the Federal Rules of Civil Procedure and because Brown cannot 

properly piggyback on plaintiffs’ Title VII claims. 

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I. FACTUAL BACKGROUND1 AND LEGAL ALLEGATIONS OF 

RESHANDA BROWN 

Brown began working at defendant’s facility on or about October 31, 2005 

in the credit department as a temporary employee through an employment agency. 

(Amended Complaint ¶ 76). Brown performed the job duties of a credit analyst. 

(Amended Complaint ¶ 77). Brown received no verbal or written discipline of any 

kind from defendant. (Amended Complaint ¶ 79). Brown applied for and 

interviewed with Al Sartain, Credit Manager, for a credit analyst job in September 

2006. (Amended Complaint ¶¶ 82-84). Defendant hired a more qualified black 

female for the job. As a result, Brown’s temporary employment with defendant 

ended on or about November 13, 2006. (Amended Complaint ¶ 85). Brown filed 

no EEOC Charge, and her only complaint is that she was not hired as a permanent 

employee. 

II. BROWN’S CLAIM IS IMPROPERLY JOINED

Because plaintiffs attempt to add a new plaintiff, they must meet the 

requirements for joinder under Rule 20(a) of the Federal Rules of Civil Procedure 

as well as the requirements for amending the complaint under Rule 15(a) of the 

Federal Rules of Civil Procedure. See Hinson v. Norwest Financial South 

Carolina, Inc., 239 F.3d 611, 618 (4th Cir. 2001) (explaining that joinder of 

 

1

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

backgrounds and legal allegations as contained in their Amended Complaint. 

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additional plaintiffs triggers application of Rule 20 requirements). Brown’s claim 

arises out of distinct transactions and occurrences from plaintiffs’ claims and does 

not have common questions of law or fact to plaintiffs’ claims. Therefore, 

Brown’s claims under 42 U.S.C. § 1981 and Title VII do not meet the joinder 

requirements of Rule 20. 

Proper joinder under Rule 20(a) has two requirements: (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. KMart Corp., 849 F. Supp. 785, 787 (N.D. Ga. 1994). 

Brown’s claim does not arise out of the same transaction or occurrence as 

plaintiffs’ claims. Brown’s sole claim is a failure to hire claim, while plaintiffs are 

all current employees who have pled no failure to hire claims.

2

 Additionally, 

Brown identifies a different decision-maker than the plaintiffs and complains of 

conduct that occurred after plaintiffs filed their Charges of Discrimination. As 

such, Brown’s claim is separate and distinct from plaintiffs’ claims and does not 

arise out of the same transaction or occurrence. 

 

2

 A more detailed discussion of the plaintiffs’ factual backgrounds and legal allegations is 

contained in the Motion to Sever U.S. Foodservice filed on October 9, 2006. 

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Moreover, Brown’s claim is factually and legally distinct from the plaintiffs’ 

claims because her only claim is a failure to hire claim while plaintiffs are current 

employees with no such claims. Unlike the other plaintiffs, Brown has no 

complaints about the terms and conditions of her employment because she was 

never an employee. Additionally, Brown has no retaliation claim, while the other 

plaintiffs have a retaliation claim. Finally, Brown has no hostile work environment 

claim while plaintiff Fluker does. Therefore, Brown’s claim is factually and 

legally distinct from plaintiffs’ claims. 

For these reasons, plaintiffs’ cannot prove the requirements of Rule 20(a), 

and their Motion for Leave to Amend Complaint to add Brown as a plaintiff is due 

to be denied. 

III. BROWN CANNOT PIGGYBACK ON PLAINTIFFS’ TITLE VII 

CLAIMS 

Moreover, Brown did not file a Charge of Discrimination and improperly 

attempts to piggyback her Title VII claim on the plaintiffs’ Title VII claims, 

without identifying which Charge she is using. As a general rule, an employee 

who wishes to sue her employer under Title VII must file an administrative charge 

with the EEOC. See Hipp v. Liberty National Life Insurance, Co., 252 F.3d 1208, 

1217 (11th Cir. 2001). Under the piggybacking rule, a putative plaintiff who has 

not filed a Charge of Discrimination may piggyback her claim onto the claim of a 

plaintiff who has filed a timely charge if she can prove that: (1) the relied upon 

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charge is not invalid and (2) the individual claims of the filing and non-filing 

plaintiff arise out of similar discriminatory treatment in the same time frame. Id. 

Because Brown complains about not being hired, while the remaining 

plaintiffs are current employees with no failure to hire claims, Brown’s claim is not 

similar. See Hines v. Widnall, 334 F.3d 1253, 1257 n.4 (11th Cir. 2003) 

(explaining that the single filing rule would not save failure to hire claims 

attempting to piggyback on promotion and lack of opportunities to advance claims 

because “this court does not consider discrimination towards employees and 

applicants to be similar treatment for purposes of the single filing rule”). 

Washington v. Brown & Williamson Tobacco Corp., 756 F. Supp. 1547, 1552 

(M.D. Ga. 1991) (explaining that putative plaintiff with a hiring claim could not 

piggyback on the EEOC Charge of a plaintiff who was actually employed with 

defendant and did not have standing to object to the hiring practices). 

Second, to be deemed similarly situated, Brown’s claim must also have 

arisen in the same general time frame as those of the representative plaintiffs. See 

Hipp, 252 F.3d 1208, 1217. That time frame is the 180 days preceding the date 

that the representative charge was filed. Hipp, 252 F.3d 1208, 1220-1225. Brown 

does not identify which Charge on which she is attempting to piggyback. 

However, plaintiffs filed their charges between May 6, 2004 and February 24, 

2006, all before Brown applied for a job. (Amended Complaint ¶¶ 11-16). There 

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is no temporal proximity between Brown’s claim and plaintiffs’ Charges because 

Brown’s claim had not arisen before the most recent (even supplemental) EEOC 

Charge was filed. As such, Brown’s claim is not similar to plaintiffs’ claims, and 

she cannot piggyback her Title VII claim on plaintiffs’ Title VII claims. See Hipp, 

252 F.3d 1208, 1227 (finding that plaintiffs whose claims had not arisen prior to 

the date the representative plaintiff filed his charge should not have been permitted 

in the lawsuit); Erickson v. Hunter, 932 F. Supp. 1380, 1384 (M.D. Fla. 1996) 

(allowing plaintiffs 10 days to amend their complaint to include time frames in 

which the alleged discriminatory treatment occurred because, if the time frames 

did not overlap, the putative plaintiffs had not satisfied the single filing rule). 

For these reasons, Brown cannot piggyback her Title VII claim on plaintiffs’ 

Title VII claims, and plaintiffs’ Motion to Amend Complaint should be denied as 

to Brown’s Title VII claim. 

IV. CONCLUSION

For the foregoing reasons, Brown cannot meet the joinder requirements 

pursuant to Rule 20(a) of the Federal Rules of Civil Procedure, and Brown cannot 

piggyback her Title VII claim on plaintiffs’ Title VII claims. Therefore, plaintiffs’ 

Motion for Leave to Amend Complaint to add Reshanda Brown as a plaintiff is 

due to be denied. 

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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. 

CERTIFICATE OF SERVICE

I hereby certify that on February 5, 2007, 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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