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IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

RICARDO WRIGHT, BERYL

JACKSON, TRACEY MARTIN,

CALVIN FLUKER, LISA

PITCHFORD, KIMBERLY LOVE,

PLAINTIFFS,

V.

U.S. FOODSERVICE, INC. and

U.S. FOODSERVICE, INC. -

MONTGOMERY DIVISION,

Defendants.

)

)

)

) CIVIL ACTION NO.:

) 2:06cv785-MHT

)

) JURY DEMAND

)

)

)

)

)

)

)

)

PLAINTIFFS’ RESPONSE IN OPPOSITION TO

DEFENDANT’S MOTION TO SEVER

COME NOW, the plaintiffs and submit their response in opposition to

Defendant’s Motion to Sever. For the reasons set forth below, plaintiffs assert the

defendant’s motion is due to be denied and plaintiffs request the entry of an Order

denying Defendant’s motion in all respects based on the following:

I. Standard of Review

The defendant contends in its motion that even before any discovery is

conducted in the case that plaintiff’s claims should be severed pursuant to Fed. R.

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1The Eleventh Circuit has adopted as precedent the decisions of the former Fifth Circuit

rendered prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th

Cir.1981).

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Civ. P. 21. A district court has broad discretion in ruling on a motion to sever.

See, Alexander v. Fulton County, Ga., 207 F.3d 1303, 1322 (11

th Cir. 2000)("We

review a district court's joinder of Plaintiffs'claims and denial of severance for

abuse of discretion."), citing, Nor-Tex Agencies, Inc. v. Jones, 482 F.2d 1093,

1100 (5th Cir.1973)

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.

II. Legal Argument

In order to obtain a severance, the defendant must demonstrate that

plaintiffs’ claims are misjoined. See, Fed. R. Civ. P. 21. In the instant case,

contrary to the assertions of the defendant, plaintiffs’ claims are properly joined in

accordance with Rule 20(a) of the Federal Rules of Civil Procedure. Federal Rule

of Civil Procedure 20(a) allows persons to join in one action as plaintiffs (a) if

they assert any right to relief arising out of the same transaction or occurrence, or

series of transactions or occurrences, and (2) if some question of law or fact

common to all these persons will arise in the action. See, Alexander v. Fulton

County, 207 F.3d 1303, 1332-1323 (11

th Cir. 2000). The central theory behind

Rule 20 is “to promote trial convenience and expedite the resolution of disputes,

thereby eliminating unnecessary lawsuits.” Id. at 1323. The United States

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Supreme Court has instructed district courts to utilize a liberal standard towards

permissive joinder of claims and parties and has stated that “joinder of claims,

parties, and remedies is strongly encouraged.” Id. (quoting United Mine Workers

v. Gibbs, 383 U.S. 715, 724, 86 S.Ct. 1130, 1137, 16 L.Ed.2d 218 (1966).

For guidance in applying the first prong, courts have looked to cases

interpreting the rule governing compulsory counterclaims which also contains a

"transaction or occurrence" requirement. Mosley v. General Motors Corp., 497

F.2d 1330, 1333 (8th Cir.1974). Accordingly, all events that are "logically

related" to one another, which give rise to a cause of action, may be joined in the

same suit. In Alexander, the Eleventh Circuit discussed the law set forth in

Mosely as follows: . . . In Mosley, perhaps the leading case on the joinder of

Title VII plaintiffs under Rule 20, see 4 Lex K. Larson,

Employment Discrimination, §§ 78.05, at 28-29 (2d

ed.1994), ten black plaintiffs alleged that General Motors

had a general policy of discrimination against black

employees. The trial court had ordered the severance of

the claims, concluding that the allegations presented a

variety of issues and had little relationship to one

another. Mosley, 497 F.2d at 1332. The Eighth Circuit

reversed the trial court's order to sever plaintiffs'claims,

concluding that, based on its reading of Rule 20, the

General Motors policy ""purportedly designed to

discriminate against blacks in employment ... [arose] out

of the same series of transactions and occurrences."" Id.

at 1334. The court held that ""[s]ince a ‘‘state-wide

system designed to enforce the registration laws in a way

that would inevitably deprive colored people of the right

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to vote’’ was determined to arise out of the same series

of transactions or occurrences, we conclude that a

company-wide policy purportedly designed to

discriminate against blacks in employment . . . [arose]

out of the same series of transactions or occurrences""

Id. at 1333-34 (quoting United States v. Mississippi, 380

U.S. 128, 142, 85 S.Ct. 808, 815-16, 13 L.Ed.2d 717

(1965)). See also Blesedell v. Mobil Oil Co., 708 F.Supp.

1408, 1422 (S.D.N.Y.1989) ( ""A company-wide policy

purportedly designed to discriminate against females in

employment arises out of the same series of transactions

or occurrences.""); *1324 King v. Pepsi Cola Metro.

Bottling Co., 86 F.R.D. 4, 6 (E.D.Pa.1979) (noting that

allegations of a ""pervasive policy of discrimination"" by

the employer bring the ""complaints of individual

Plaintiffs under the rubric of the ‘‘same series of

transactions'""); Vulcan Soc'y of Westchester Cty. v. City

of White Plains Fire Department, 82 F.R.D. 379, 387

(S.D.N.Y.1979) (stating that transaction requirement met

where Plaintiffs and would-be Plaintiffs claimed

discriminatory policies and practices which included a

series of exams allegedly used to discriminate against

blacks).

Alexander, 207 F.3d at 1323.

The second prong of the Rule 20(a) test does not require that all of the

questions of law and fact arising in the lawsuit be common. The requirement is

that only some question of law or fact be common to all of the parties. Alexander,

207 F.3d at 1324. The Alexander court held that the discriminatory character of

the defendant’s conduct was “plainly common to each plaintiff’s recovery.” Id.

The court further held that “the fact that the plaintiff’s suffered different effects -

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in this case, discrimination in promotions, transfers, assignments, or discipline -

from the alleged policy of discrimination did not preclude the trial court from

finding a common question of law and fact.” Id.; See also, Mosely 497 F.2d at

1334; Blesedell v. Mobil Oil Co., 708 F.Supp. 1408, 1422 (S.D.N.Y. 1989).

In the instant case, the plaintiffs, who are all African-American, have

presented claims that are logically related to each other. They all contend that

they have been discriminated based on a division-wide policy of denying AfricanAmerican employees the opportunity for advancement to managerial positions that

have been available within the same approximate time frame. All of the plaintiffs

filed EEOC charges within approximately one year of each other, and they all

work out of the same division office in Montgomery. All of the plaintiff have

been denied promotions, in part, as the result of the defendant’s failure to post

positions which has lead to the hand-picking of less qualified white candidates.

While only plaintiff Calvin Fluker has a hostile environment claim, the majority,

if not all, of the plaintiffs have been negatively effected by decisions made by the

same upper management employees involved in Fluker’s hostile environment

claim, including, but not limited to, Vice President of Sales, Joe Chambliss, and

Director of Human Resources, Ben McDavid. Moreover, the EEOC investigated

all of the plaintiffs’ charges together and issued a determination that the defendant

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has subjected to African-American employees as a class to a racially hostile

environment and to retaliation as a class. In the Amended Determination, the

District Director of the EEOC stated as follows:

The record of testimony shows that a company culture exists in which

racists comments, racial tension and retaliation is tolerated by and

participated in by management employees. Throughout the investigation,

there has been significant testimony of differential terms and conditions of

employment for Black employees. . . . Witness testimony also indicated that

when Black employees used the 1-800 number to complain of the racially

hostile environment and discrimination, the calls were re-routed to Ben

McDavid, V.P. of Human Resources, who employees indicate thereafter

engages in intimidation and retaliatory behavior against complainants.

The investigation revealed that Respondent has a publicized policy against

harassment. Despite the published policy, testimonial evidence supports

that Charging Party and a class of Blacks are subjected to a hostile work

environment; that Black employees are treated differentially; that

complaints are made, but no effective corrective action is taken; and the

hostile environment continues to exist. . . . Further, complaints while

allegedly investigated are not taken seriously. Charging Party Fluker was

once told by the Division President in response to a complaint that he was

"too sensitive."

Based on the evidence of record and an analysis of same, I have determined

that there is a reasonable cause to believe that Respondent discriminated

against Charging Party and a class of Black employees by subjecting them

to a racially hostile and offensive work environment and establishes

violations of Title VII of the Civil Rights Act of 1964, as amended.

I have further determined that there is a reasonable cause to believe that

Charging Party and a class of Black employees were subjected to retaliatory

harassment for their complaints in violation of Section 704(a and b) of the

Civil Rights Act of 1964, as amended.

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In its motion, the defendant argues that because different supervisors

discriminated against the plaintiffs, their claims do not arise out of the same

transaction or series of transactions. However, through discovery the plaintiffs

will prove that most of the discriminatory decisions affecting promotions,

compensation, and the other terms and conditions of their employment at issue in

the case occurred as the result of a division-wide policy implemented and enforced

by a small number of white upper management employees. In addition, the fact

that different supervisors who work in the division office in Montgomery were

discriminating against African-American employees supports plaintiffs’

contention that the defendant possesses a division-wide policy of discrimination,

as opposed to discrimination by an isolated supervisor whose actions may or may

not reflect company policy. Such a division-wide policy of discrimination

suggests a "logical relationship" between the plaintiffs’ claims. See, Mosely, 497

F.3d at 1333. See also Blesedell v. Mobil Oil Co., 708 F.Supp. 1408, 1422

(S.D.N.Y.1989) ( "A company-wide policy purportedly designed to discriminate

against females in employment arises out of the same series of transactions or

occurrences."); King v. Pepsi Cola Metro. Bottling Co., 86 F.R.D. 4, 6

(E.D.Pa.1979) (noting that allegations of a "pervasive policy of discrimination" by

the employer bring the "complaints of individual Plaintiffs under the rubric of the

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‘same series of transactions’"); Vulcan Soc'y of Westchester Cty. v. City of White

Plains Fire Department, 82 F.R.D. 379, 387 (S.D.N.Y.1979) (stating that

transaction requirement met where Plaintiffs and would-be Plaintiffs claimed

discriminatory policies and practices which included a series of exams allegedly

used to discriminate against blacks).

The defendant only points to dissimilarities between each of the plaintiffs’

claims in support of its motion; however, the law does not require that all issues of

law and fact being similar but only some issues be similar. See, Alexander, 207

F.3d at 1324. The majority of the claims center on the core allegations that the

division discriminates against African-American employees in promotions and

compensation based on their race and that all of the plaintiffs were retaliated

against for filing EEOC charges. There is substantial overlap between these

claims of the plaintiffs. For example, five of the plaintiffs have been denied

promotions to either territory manager or district manager positions in the same

sales department supervised by Joe Chambliss. In fact, several of the plaintiffs

allege that they were denied the same promotions. Moreover, all of the plaintiffs

who hold the positions of territory managers have alleged that they have been

discriminated against by the defendant in compensation in the same manner,

including by receiving less lucrative accounts and support, fewer discounts and

Case 2:06-cv-00785-MHT-WC Document 13 Filed 10/17/2006 Page 8 of 11
2 Grayson v. K-Mart Corporation, 849 F.Supp. 785 (N.D. Ga. 1994), cited

prominently by the defendant, is factually distinguishable. In Grayson, the

plaintiffs, a group of eleven store managers over 40 years old, contended that KMart had a general bias toward older store managers. Grayson, 849 F.Supp. at

786. However, each of the eleven plaintiffs worked in a different store that were

spread across Alabama, Florida, Georgia, and North Carolina. Id. at 786. In

addition, each of the plaintiffs at the time of their terminations reported to

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less desirable credit terms, and poor customer service. Further, plaintiffs will

prove, as alleged, that the defendants conducted a coordinated campaign of

retaliation against them for opposing discrimination. Thus, it is abundantly clear

that the plaintiffs claims’ share some common questions of law and fact as

required by Fed. R. Civ. P. 20. See, Wilson v. Fleetwing Corp., 2006 WL 2228930

(M.D. Fla.), citing, Alexander, 207 F.3d at 1324. See also, Cooper v. Federal

Reserve Bank of Richmond, 467 U.S. 867, 876, 104 S.Ct. 2794, 2799, 81 L.Ed.2d

718 (1984) (explaining that evidence of pervasive discrimination against others is

admissible if such evidence is similar to the complainant's experience and tends to

establish that "racial discrimination was the company's standard operating

procedure-the regular rather than the unusual practice") (quoting International

Brotherhood of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843,

1855, 52 L.Ed.2d 396 (1977).

Despite defendant’s argument to the contrary, this case does not involve

many decisionmakers and a myriad of unrelated claims.

2 Plaintiffs will prove that

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different district managers and regional managers. Id. at 787, Moreover, the

employment decisions at issue were made based, at least in part, on the individual

economic performance of each plaintiff/manager’s store. Id. at 788-789.

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most of the selection decisions at issue in this case were made by upper

management employees in the Montgomery corporate office, specifically Joe

Chambliss and Ben McDavid and that these same decisionmakers have been

involved in retaliating against the plaintiffs as a group. It is in the interest of

judicial economy and the convenience of the parties that the cases should be

maintained in a single action before a single judge. This will permit discovery to

be coordinated, minimize or eliminate duplicative discovery, hearings and

motions, allow coordination of deadlines and otherwise foster judicial economy.

The discovery in the cases will focus on many of the same documents and it would

be illogical to conduct six sets of depositions, six sets of hearings and six trials.

The costs of six trials with most of the same witnesses will be an unnecessary

waste of judicial resources and the resources of the parties, especially under the

circumstances of the instant case.

III. CONCLUSION

Based on the foregoing, defendant’s Motion to Sever is due to be denied.

Respectfully submitted,

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s/Maury S. Weiner

Jon C. Goldfarb (ASB-5401-F58J)

Maury S. Weiner (ASB-8856-W86M)

Counsel for Plaintiff

OF COUNSEL:

Wiggins, Childs, Quinn & Pantazis, LLC

301 19

th Street North

Birmingham, AL 35203

Telephone No.: (205) 314-0500

Facsimile No.: (205) 254-1500

CERTIFICATE OF SERVICE

I hereby certify that I have filed a true and correct copy of the above and

foregoing document the Clerk of Court using the CM/ECF system which will

electronically notify the following counsel of record:

Tammy L. Baker, Esq.

Tamula R. Yelling, Esq

CONSTANGY, BROOKS & SMITH LLC

One Federal Place, Suite 900

1819 Fifth Avenue North

Birmingham, Alabama 35203

on this the 17th day of October , 2006.

s/Maury S. Weiner

OF COUNSEL

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