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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,

RESHANDA BROWN,

PLAINTIFFS,

V.

U.S. FOODSERVICE, INC. and

U.S. FOODSERVICE, INC. -

MONTGOMERY DIVISION,

Defendants.

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)

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) CIVIL ACTION NO.:

) 2:06cv785-MHT

)

) JURY DEMAND

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PLAINTIFFS’ RESPONSE TO DEFENDANT’S

OBJECTION TO PLAINTIFFS’ MOTION FOR

LEAVE TO AMEND THE COMPLAINT

COME NOW, the plaintiffs and submit their response to defendant’s

objection to plaintiffs’ motion for leave to amend the complaint. For the reasons

set forth below, plaintiffs assert the defendant’s objection is due to be denied and

plaintiffs request the entry of an Order denying defendant’s objection based on the

following:

I. Introduction

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1 The defendant contends that the position Brown was denied was awarded to a black

female. Brown strongly disputes this contention; however, this issue is not relevant to whether

the plaintiffs should be allowed to amend their complaint to add Brown as an additional plaintiff.

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On January 26, 2007, the Court granted plaintiffs’ motion to amend their

complaint, which plaintiffs filed on February 5, 2007. The primary purpose of

plaintiffs’ amendment was to add Reshanda Brown as a plaintiff in the case. As

alleged in the amended complaint, Brown worked for the defendant as a temporary

employee for more than a year before she was terminated. Brown contends that

she was denied a permanent position with the defendant that was awarded to a less

qualified white female.

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II. Legal Argument

The defendant contends that Brown should not be permitted to be a

plaintiff in the instant lawsuit because she does not meet the joinder requirements

of Fed. R. Civ. P. 20(a). Contrary to the assertions of the defendant, Brown’s

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,

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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 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

Case 2:06-cv-00785-MHT-WC Document 22 Filed 02/21/2007 Page 3 of 9
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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 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 companywide 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.

As discussed in plaintiffs’ response to defendant’s earlier motion to sever,

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

questions 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

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court further held that “the fact that the plaintiff’s suffered different effects - 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 its objection, the defendant primarily asserts that Brown’s claim should

not be joined with the claims of the other plaintiffs because she would be the only

plaintiff with a hiring claim. However, Brown’s claim that she was denied a

permanent position that was awarded to a less qualified white female is consistent

with the other plaintiffs’ contention in this case that the defendant possesses at

least a division-wide policy of discrimination in selection decisions implemented

and enforced by a small number of white upper management employees. The fact

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

discriminated against African-American employees supports Brown’s and all of

the 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

Case 2:06-cv-00785-MHT-WC Document 22 Filed 02/21/2007 Page 5 of 9
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

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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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 ‘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).

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Brown will prove in this case that she was adversely effected by the same

racially discriminatory selection policies and practices of the defendant as the

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3 Defendant also argues that Brown should not be a plaintiff in this case because she

cannot piggyback on the EEOC charges of the other plaintiffs. This argument is wholly

irrelevant at this stage of the case since Brown has brought her claims of race discrimination

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other six plaintiffs. Moreover, Brown worked in the same department as Plaintiff

Love, was trained by Love, and both she and Love were supervised by the same

management employee. Also, in contrast to the contention of the defendant,

Brown was discriminated against during the same time frame as the other

plaintiffs as alleged in the complaint; she was just not discriminated against for as

long of period as the other plaintiffs because of the limited duration of her

employment. In making this specific argument, the defendant ignores plaintiffs’

42 U.S.C. § 1981 and retaliation claims.

It is in the interest of judicial economy and the convenience of the parties

that Brown’s claims should be maintained in the instant case, which 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 seven sets of depositions, seven sets of

hearings and seven trials. The costs of seven 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.

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pursuant to 42 U.S.C. § 1981, and it is undisputed that Brown’s claims are timely under Section

1981.

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III. CONCLUSION

Based on the foregoing, defendant’s objection to plaintiffs’ motion for leave

to amend the complaint is due to be denied.

Respectfully submitted,

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 21st day of February , 2007.

Case 2:06-cv-00785-MHT-WC Document 22 Filed 02/21/2007 Page 8 of 9
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s/Maury S. Weiner

OF COUNSEL

Case 2:06-cv-00785-MHT-WC Document 22 Filed 02/21/2007 Page 9 of 9