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* This matter was determined to be suitable for decision without

oral argument. L.R. 78-230(h). 

1 Defendants also moved for an order staying the action pending

the resolution of a separate arbitration action filed by Plaintiff

Vargas. However, since Vargas terminated his arbitration action,

Defendants withdrew the stay motion. (Defs.’ Reply at 2.)

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

MICHAEL BAKER, WILLIE ANDREWS, )

RICHARD ELEY, and TROY VARGAS, ) CIV. S-04-549 GEB GGH

)

Plaintiffs, )

) 

v. ) ORDER*

) 

ARAMARK UNIFORM AND CAREER APPAREL,)

INC., DON CLOWES, WILL POLIFKA, )

GREG LEWIS, TIM BICKERTON, )

DAVE KOCH, and TOM VELASCO, )

)

Defendants. )

)

Defendants move for severance of Plaintiffs’ claims or, in

the alternative, for separate trials of Plaintiffs’ claims.1

Plaintiffs oppose the motion.

Defendants argue Plaintiffs’ claims should be severed and/or

the trials should be separated because (1) joinder was improper since

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28 2 Unless otherwise indicated, all references to Rules are to the

Federal Rules of Civil Procedure.

2

the claims of the four Plaintiffs do not arise out of the same

transaction or occurrence; (2) Defendants will suffer unfair prejudice

if Plaintiffs’ claims are tried together; (3) jury confusion will

result if Plaintiffs’ claims are tried together; and (4) judicial

economy would not be hindered by severing the claims and/or separating

trials. (Defs.’ Mot. at 10-19.) 

Federal Rule of Civil Procedure 20(a) “permits the joinder

of plaintiffs in one action if: (1) the plaintiffs assert any right to

relief arising out of the same transaction, occurrence, or series of

transactions or occurrences; and (2) there are common questions of law

or fact.”2 Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997). 

“If the test for permissive joinder is not satisfied, a court, in its

discretion, may sever the misjoined parties, so long as no substantial

right will be prejudiced by the severance.” Id.

Plaintiffs’ claims arise out of a series of transactions and

occurrences that took place at the Reno Depot of Aramark Uniform and

Career Apparel, Inc. The claims involve discrimination and

retaliation directed at African-American and Hispanic employees and

the supervisor who spoke out on their behalf. (Pls.’ Opp’n at 14.) 

All of Plaintiffs’ claims “revolve around complaints made by white

supervisor plaintiff Baker to upper management about the racist and

discriminatory treatment of the three other plaintiffs, Andrews, Eley,

and Vargas.” (Id.) Furthermore, two of the Defendants were involved

in claims by each of the Plaintiffs: Defendant Polifka, the Reno

branch manager, allegedly terminated Plaintiff Andrews and ordered

Baker to find a way to terminate Plaintiffs Eley and Vargas; and

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3

Defendant Clowes, Polifka’s boss, allegedly fired Baker and directed

all of Polifka’s actions. (Id.)

There are also common questions of law or fact since

Plaintiffs allege parallel claims against Defendants for unlawful or

constructive discharge, retaliation and hostile work environment under

Title VII; and racial discrimination in the making and enforcement of

contracts under 42 U.S.C. § 1981. Furthermore, Plaintiffs contend

that “There is commonality in the claims of the four plaintiffs not

only in protesting discrimination and receiving retaliation, but also

in the manner that each of the four plaintiffs were terminated. All

were ‘set up’ and targeted for termination using deceit and false

allegations as a mainstay.” (Pls.’ Opp’n at 17.) Therefore, joinder

was proper under Rule 20(a) and Defendants’ motion for severance is

denied.

Under Rule 42, “The court, in furtherance of convenience or

to avoid prejudice, or when separate trials will be conducive to

expedition and economy, may order a separate trial of any claim . . .

or of any separate issue or of any number of claims . . . .” Fed. R.

Civ. P. 42(b). Since Defendants have not established that

convenience, expedition, and economy would be best served by separate

trials, and since Defendants will not be unduly prejudiced by a single

trial, Defendants’ motion for separate trials is denied.

IT IS SO ORDERED.

Dated: May 19, 2005

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

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