Anderson, et al., v. Nelson Bros. Ready Mix, LTD.

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
TREVIN ANDERSON, ET AL.
v.
NELSON BROS. READY MIX, LTD.
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CIVIL NO. 4:26-CV-299-SDJ
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Nelson Bros. Ready Mix, LTD’s Motion to Sever
Plaintiffs’ claims or, in the alternative, Motion for Separate Trials. (Dkt. #7). The
Motion 	has 	been 	fully 	briefed. 	(Dkt. #12) 	(Plaintiffs’ 	Response 	in 	Opposition);
(Dkt. #13) (Defendant’s Reply); (Dkt. #15) (Plaintiffs’ Sur-Reply). Having considered
the briefing, the record, and the applicable law, the Court concludes that the motion
should be denied.
I. B ACKGROUND
Plaintiffs Broderick Kelley and Trevin Anderson were employees of Defendant
Nelson Bros. Ready Mix, LTD (“NBR”) and worked together as mixer truck drivers at
Defendant’s Farmersville Plant. (Dkt. #1 ¶ 1); (Dkt. #1 ¶ 5). Anderson, who had
previously worked for NBR in 2018, returned in 2020 and remained with the company
until 2023. (Dkt. #1 ¶ 1); (Dkt. #1 ¶ 15). Kelley worked for NBR from 2022 to 2023.
(Dkt. #1 ¶ 1).
During this time, Plaintiffs were allegedly subjected to “racial comments and
slurs from non-Black employees, including co-workers, other drivers, the dispatcher,
and their supervisors.” (Dkt. #1 ¶ 1). Plaintiffs allege that “racial slurs were said to
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them directly and in their presence,” and that “racial slurs were often used on the
radios that could be heard by all of the mixer drivers, dispatcher and managers.”
(Dkt. #1 ¶ 30). The racial slurs, Plaintiffs claim, were “severe or pervasive and
created an abusive working environment.” (Dkt. #1 ¶ 30).
Plaintiffs also allege that they were subjected to disparate treatment because
of their race, including disparate disciplinary practices and payment of wages below
that of non-Black mixer truck drivers. (Dkt. #1 ¶ 2). Plaintiffs were paid different
wages, with Anderson making $26 per hour plus bonuses in his full-time position
while Kelly made $25 per hour plus bonuses in his full-time position. (Dkt. #1 ¶¶ 15–
16). Plaintiffs claim that “they are aware that other non-Black mixer drivers were
paid at higher per hour rates and received pay increases and more bonuses than they
did.” (Dkt. #1 ¶ 42). Plaintiffs also claimed that they were disciplined more harshly
than non-Black mixer truck drivers. See (Dkt. #1 ¶ 43) (citing a specific example of
Kelley being “disciplined because he injured himself even though non-Black drivers
did not receive the same level of discipline for injuring themselves”). Further,
Plaintiffs claim that, as a result of those write-ups, they were denied bonuses.
(Dkt. # 1 ¶ 43).
According 	to 	NBR, 	Plaintiffs 	did 	not 	report 	any 	of 	the 	alleged 	acts 	of
harassment or disparate treatment under NBR’s formal reporting policies and
procedures. (Dkt. #4 at 5). However, Plaintiffs claim that they were terminated in
retaliation for their “opposition to the racial hostility that pervaded the Defendant’s
workplace.” (Dkt. #1 ¶ 3). At a safety meeting conducted by NBR, Anderson “reported
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that he and other drivers felt that the work environment had turned hostile,” before
stating that the “drivers have a right to file a charge of discrimination with the
EEOC.” (Dkt. #1 ¶ 26). Anderson alleged that following his comments at the meeting,
NBR gave him a disciplinary write-up and suspended him for three days. (Dkt. #1
¶ 26). A few months later Anderson was terminated after he emailed a complaint to
“Human Resources relating to his racially discriminatory treatment by the company,”
with NBR “fail[ing] or refus[ing] to give him a reason for the termination.” (Dkt. #1
¶¶ 27, 51). Kelley was terminated on a different date under different circumstances,
with Kelley alleging that he complained to other drivers about racial slurs being
directed towards him and told one dispatcher to stop calling him “boy.” (Dkt. #1 ¶ 28).
Kelley claims that “[w]ithin 6 months of his opposition to the racially hostile work
environment, Kelley was terminated by Defendant.” (Dkt. #1 ¶ 28).
NBR maintains that Plaintiffs were terminated for different disciplinary
reasons. 	See 	(Dkt. #7 	¶ 10–11). 	NBR 	states 	that 	Kelley 	was 	terminated 	for
“accumulat[ing] multiple disciplinary incidents in less than a year,” including alleged
safety and performance issues such as a “ladder-related safety incident in November
2023 that led to his termination.” (Dkt. #7 ¶ 10). As to Anderson, NBR’s “position is
that Anderson received written corrective action or written violations for different
[safety and performance related] incidents,” including verbal confrontations with
co-workers and disruption of the safety meeting. (Dkt. #7 ¶ 11).
Kelley and Anderson filed separate charges of discrimination with the Equal
Employment 	Opportunity 	Commission 	(“EEOC”) 	on 	the 	same 	day, 	with 	NBR
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submitting separate position statements addressing each charge. (Dkt. #7 ¶ 9). After
Plaintiffs received their right to sue letters from the EEOC, they filed the present
suit against NBR alleging a racially hostile work environment, disparate treatment
and pay, and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title
VII”), Section 1981 of the Civil Rights Act of 1866 (“Section 1981”), and the Texas
Commission on Human Rights Act (“TCHRA”). See (Dkt. #1). Both Plaintiffs seek
back pay and front pay, among other damages. (Dkt. #1 ¶ 4).
NBR then filed the present Motion to Sever contending that the claims are
improperly joined because Plaintiffs have “two separate and distinct employment
disputes” with different incidents, witnesses, and protected activities. (Dkt. #7 ¶ 1).
Plaintiffs filed a response in opposition to the Motion to Sever, with NBR then filing
a reply. (Dkt. #12); (Dkt. #13). Plaintiffs additionally filed a Sur-Reply. (Dkt. #15).
II. LEGAL S TANDARD
Rule 21 allows the court to “sever any claim against a party.” F ED. R. CIV. P. 21.
Courts have discretion to refuse joinder in the interest of avoiding prejudice and
delay, ensuring judicial economy, or safeguarding principles of fundamental fairness.
Acevedo v. Allsup’s Convenience Stores, Inc., 600 F.3d 516, 521 (5th Cir. 2010); see
also Anderson v. Red River Waterway Comm’n, 231 F.3d 211, 214 (5th Cir. 2000)
(stating that “a trial court has broad discretion to sever”); Applewhite v. Reichhold
Chems., Inc., 67 F.3d 571, 574 (5th Cir. 1995) (noting that under Rules 20 and 21, a
“district court has the discretion to sever an action if it is misjoined or might
otherwise cause delay or prejudice”).
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“Severance 	under 	Rule 	21 	creates 	two 	separate 	actions 	or 	suits 	where
previously there was but one.” U.S. v. O’Neil, 709 F.2d 361, 368 (5th Cir. 1983).
“‘Where a single claim is severed out of a suit, it proceeds as a discrete, independent
action, and a court may render a final, appealable judgment in either one of the
resulting two actions notwithstanding the continued existence of unresolved claims
in the other.’” Haynes v. Miller, 341 F.App’x 969, 970 n.1 (5th Cir. 2009) (per curiam)
(quoting Allied Elevator, Inc. v. E. Tex. State Bank of Buna, 965 F.2d 34, 36 (5th Cir.
1992)).
Courts in the Fifth Circuit use Rule 20 to determine if parties are misjoined
under Rule 21. Acevedo, 600 F.3d at 521–22 (“Since Rule 21 does not provide any
standards by which district courts can determine if parties are misjoined, courts have
looked to Rule 20 for guidance.”). Under Rule 20, joinder of plaintiffs is appropriate
when (1) “they assert any right to relief jointly, severally, or in the alternative with
respect to or arising out of the same transaction, occurrence, or series of transactions
or occurrences” and (2) “any question of law or fact common to all plaintiffs will arise
in the action.” F ED. R. CIV. P. 20(a)(1).
“Under the Rules, the impulse is toward entertaining the broadest possible
scope of action consistent with fairness to the parties; joinder of claims, parties and
remedies is strongly encouraged.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715,
724, 	86 S.Ct. 	1130, 	16 L.Ed.2d 	218 	(1966); 	see 	also 	Castillo v. 	Lennar 	Corp.,
No. H-08-1469, 2008 WL 4425298, at *1 (S.D. Tex. Sept. 23, 2008) (noting that
joinder is specifically strongly encouraged in the employment discrimination context).
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“The party seeking severance under Rule 21 or separate trials under Rule 42(b) bears
the burden of proving that such action is necessary.” Aspen Tech., Inc v. Kunt,
No. 4:10-CV-1127, 2011 WL 86556, at *3 (S.D. Tex. Jan. 10, 2011).
III. DISCUSSION
Courts in the Fifth Circuit consider the following factors in determining
whether to sever claims under Rule 21:
(1) whether the claims arise out of the same transaction, occurrence, or
series of transactions or occurrence; (2) whether the claims present
common questions of law or fact; (3) whether settlement of the claims or
judicial economy would be facilitated; (4) whether prejudice would be
avoided if severance were granted; and (5) whether different witnesses
and documentary proof are required for the separate claims.
Def. Distributed v. Bruck, 30 F.4th 414, 431 (5th Cir. 2022).
NBR moves to sever the claims of each Plaintiff, or, alternatively, for separate
trials. (Dkt. #7 at 11). In support of its motion, NBR contends that Plaintiffs have two
separate employment disputes with distinct “employment histories, disciplinary
records, 	alleged 	protected 	activities, 	alleged 	experienced 	harassment, 	alleged
comparators, 	termination 	events, 	witnesses, 	documentary 	proof, 	defenses, 	and
damages.” (Dkt. #7 at 1). NBR maintains that Plaintiffs’ claims should be severed
because “[t]rying both Plaintiffs’ claims together would force the jury to hear two
separate mini-trials, blur evidentiary lines between the Plaintiffs’ distinct claims,
and create the substantial risk that evidence admissible as to one plaintiff will
improperly influence the jury’s assessment of the other.” (Dkt. #7 at 2).
Plaintiffs respond that their claims are factually and legally intertwined and
arise out of the same discriminatory treatment. (Dkt. #12 at 4). In support of this
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assertion, Plaintiffs state that their “claims arise from many of the same incidents,
and they will share many of the same witnesses and evidence.” (Dkt. #12 at 4).
Therefore, they contend that severance would “unnecessarily burden the parties, the
Court, 	and the 	witnesses” 	as 	well as 	“create[] 	a 	risk 	of 	the 	juries 	rendering
inconsistent findings as to the factual issues that are identical in each case.” (Dkt. #12
at 4). Thus, they maintain that severance “is, at best, premature” in this case.
(Dkt. #12 at 4). For the following reasons, the Court agrees.
A. Same Transaction or Occurrence
NBR contends that Plaintiffs’ claims are “not different chapters of one shared
event; they are separate employment disputes involving separate incidents and
separate fact questions.” (Dkt. #7 at 6). Because of this, they state that “[a] jury could
not decide one [after deciding the other] without separately evaluating a different
sequence of facts.” (Dkt. #7 at 7). Plaintiffs respond that their “harassment and
retaliation claims arise out of the same hostile work environment and incidents of
witnessing” discriminatory comments from co-workers and supervisors. (Dkt. #12
at 6).
The “arising out of the same transaction, occurrence, or series of transactions
or occurrences” requirement is met if there is “some connection or logical relationship
between the various transactions or occurrences” giving rise to the Plaintiffs’ claims.
Horne v. 	Tex. 	Dept. 	of 	Transp., 	No. 4:19-CV-405-KPJ, 	2019 WL 	5550626, 	at *4
(E.D. Tex. Oct. 28, 2019) (quoting Jones v. Wal-Mart Stores, Inc., No. 1:05-CV-121,
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2006 WL 8441384, at *1 (E.D. Tex. Feb. 6, 2006)). “A logical relationship exists if
there is some nucleus of operative facts or law shared by the transactions.” Id.
The “arising out of” factor is met here. See id. at *5 (stating that in the
“employment context, a series of transactions or occurrences is logically connected
when the transactions or occurrences take place in the same workplace location,
during the same timeframe, under the same supervisory regime”). Plaintiffs were
both mixer truck drivers at NBR’s Farmersville location. (Dkt. #1 ¶ 5). While, as NBR
maintains, there are some periods of employment history as well as disciplinary and
termination actions that are different between the Plaintiffs, (Dkt. #7 at 6), the
Plaintiffs’ harassment and discrimination claims arise out of the same alleged hostile
work environment and incidents of discrimination. See (Dkt. #12 at 6). Plaintiffs’
Complaint describes alleged discriminatory acts occurring at the Farmersville plant
during a common time period. (Dkt. #1 ¶¶ 18–28). Plaintiffs both describe instances
of hearing racial slurs communicated over the radio, (Dkt. #1 ¶ 19), and co-workers
calling Plaintiffs and other Black employees racial epithets, (Dkt. #1 ¶¶ 18–19).
Plaintiffs allege the same general pattern and practice of disparate wage and
discipline treatment, albeit with some different specific instances. (Dkt. #1 ¶¶ 42–
44). Finally, Plaintiffs both allege that they were terminated in retaliation for
complaining about the “racially hostile work environment” they encountered at NBR.
(Dkt. #1 ¶¶ 51–52).
Based on the allegations discussed above, Plaintiffs’ claims arise out of the
same alleged “hostile work environment,” and are not “separate factual narratives”
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as NBR contends. See (Dkt. #7 at 7). Plaintiffs’ claims logically relate to each other
through many of the shared instances of alleged harassment and patterns of
discriminatory and disparate treatment that they experienced in the same work
environment. See (Dkt. #12 at 6). In short, Plaintiffs worked at the same facility,
under the same supervisors, in the same roles, and allegedly experienced racial
discrimination. See Dixon v. Garland, No. 3:22-CV-1827-D, 2023 WL 121994, at *3
(N.D. Tex. Jan. 6, 2023) (granting Motion to Sever where plaintiffs “worked in
different facilities, under different supervisors, in different positions, and were
allegedly 	discriminated against 	for different 	reasons 	and at different 	times.”).
Accordingly, the Court concludes that the claims against NBR are logically related
and, therefore, arise out of the same series of transactions or occurrences.
B. Common Questions of Law or Fact
While NBR admits there are some “broad questions common to both plaintiffs,”
they contend that “Rule 20 requires more than surface-level similarity” and, as a
result, the broad common questions raised here are not substantial enough to justify
joinder. (Dkt. #7 at 7). Plaintiffs contend that their claims arise from common
questions of law and fact, and thus, are properly joined. (Dkt. #12 at 7).
To satisfy Rule 20’s “common question” factor, Plaintiffs need only show that
there is “at least one common question of law or fact linking all claims.” Acevedo,
600 F.3d at 521; see also Taylor v. Turner Indus. Grp., LLC, No. 2:11-CV-57, 2012 WL
12895343, at *1 (E.D. Tex. Mar. 16, 2012) (stating that the only requirement is that
there be one common question of law or fact among all the Plaintiffs); Castillo,
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2008 WL 4425298, at *1 (“Only some—not all—questions of law or fact need to be
common to both plaintiffs.”).
A common question of law or fact exists when “each of plaintiff’s claims are
based on violation[s] of the same law and share a ‘common nucleus’ of underlying
facts.” Horne, 2019 WL 5550626, at *3 (citing Wagoneka v. KT&G USA Corp.,
No. 4:18-CV-859-ALM, 2019 WL 4052484, at *5 (E.D. Tex. Aug. 8, 2019)). A common
question of fact exists when the facts concerning each of one plaintiff’s claims are
“inextricably woven together” with the facts concerning the other plaintiff’s claims.
Id. (citing Nor-Tex Agencies, Inc. v. Jones, 482 F.2d 1093, 1100 (5th Cir. 1973)).
Relatively minor factual differences between different plaintiffs’ claims do not require
severance when “plaintiffs’ claims otherwise share a common nucleus of law and fact.”
Id. at 4.
The Court finds that Plaintiffs have shown the existence of more than one
specific common question of law or fact. As a starting point, Plaintiffs bring the same
causes of action against NBR for a racially hostile work environment and disparate
treatment. See (Dkt. #1 ¶¶ 29–39). Additionally, both Plaintiffs worked as mixer
truck drivers at NBR, were employed by NBR at the Farmersville plant with an
employment 	overlap 	of 	one 	year, 	and 	worked 	with 	the 	same 	co-workers 	and
dispatchers under the same supervisor. (Dkt. #1 ¶¶ 1, 5). While there are some
individualized factual questions regarding each Plaintiffs’ case, these individualized
questions still relate to both Plaintiffs’ experiences with an allegedly “hostile work
environment.” See (Dkt. #12 at 7). For example, Plaintiffs cite specific instances of
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racial slurs used by co-workers, supervisors, and the dispatcher, which were either
directed at them or at Black people generally; allege they both experienced a pattern
of disparate disciplinary practices and disparate pay; and allege that they were
terminated in retaliation for complaining about these discriminatory experiences. See
(Dkt. #12 at 7).
Plaintiffs allege enough shared instances of discriminatory and disparate
treatment 	to 	avoid 	asserting 	individualized 	claims. 	Compare 	Salih v. 	Prospect
Airport Servs., Inc., No. 3:24-CV-1353, 2024 WL 5173322, at *3 (N.D. Tex. Dec. 19,
2024) (stating that the common question of fact or law factor was not met where “two
of the three plaintiffs assert additional, entirely different claims that are not shared
by any other plaintiff”), with Taylor, 2012 WL 12895343, at *2 (“While each Plaintiff
may have experienced harassment by co-workers or supervisors of differing levels or
have been denied advancement despite an allegedly lack of non-discriminatory
reasons, their claims [] raise common questions of fact and law regarding Defendants’
corporate culture and how such harassment and discrimination is permitted.”). The
similarity between Plaintiffs’ claims is therefore sufficient to satisfy the requirement
that they share common questions of law or fact.
C. Settlement and Judicial Economy
NBR contends that a joint trial would cut against judicial economy because the
jury would need to “hear, and keep separate, two different employment histories, two
different disciplinary tracks, two different alleged protected activities, two different
termination 	theories, 	two 	different 	harassment 	narratives, 	and 	two 	different
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damages cases.” (Dkt. #7 at 8). In contrast, Plaintiffs assert that severance would
“undermine judicial economy” by multiplying the number of dockets for the Court and
parties to manage and by requiring “witnesses to testify twice to the same facts.”
(Dkt. #12 at 8) (emphasis omitted).
Because there are substantial common questions of law or fact in this case, see
supra Part III.B, Plaintiffs’ argument is more persuasive on this issue. In this regard,
the record demonstrates common underlying facts and witnesses to the alleged
harassment and disparate treatment such that granting severance would work
against judicial efficiency, resulting in delay and inconvenience to the parties, the
witnesses, and the Court. See Aguirre v. Valerus Field Sols. LP, No. 4:15-CV-03722,
2017 WL 2982299, at *4 (S.D. Tex. July 13, 2017) (finding that where common
questions of law and fact exist, severance would likely result in “delay, inconvenience,
and an overall lack of judicial economy”). Therefore, judicial economy weighs in favor
of joinder.
D. Prejudice
NBR urges that having a single jury trial would prejudice them in three ways:
(1) it would confuse the jury; (2) it would create evidentiary spillover; and (3) it
threatens 	unfair 	claim-bolstering. 	(Dkt. #7 	at 9). 	NBR 	maintains 	that 	because
various different facts make up each of the Plaintiffs’ claims, separate evidentiary
spillover would increase the risk that the jury would decide one Plaintiff’s case based
on evidence from the other Plaintiff’s case and that this would result in unfair
claim-bolstering that would prejudice NBR. (Dkt. #7 at 9). Plaintiffs respond that
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severance is not required to avoid prejudice because “this case involves only two
Plaintiffs who assert the same three claims, and they will rely on much of the same
evidence and many of the same witnesses,” thus, “[a] single jury is capable of hearing
this case.” (Dkt. #12 at 9).
To support their contention that the claims should be severed to avoid
prejudice under Rule 21, NBR argues that courts have recognized “a legitimate
prejudice concern” that juries will decide one plaintiff’s claim based on the evidence
submitted by another plaintiff. (Dkt. #7 at 9). NBR primarily relies on Dixon, but the
concerns in Dixon are not comparable to this case. See Dixon, 2023 WL 121994 at *3
(stating that joinder would likely prejudice the defendants because plaintiffs worked
at two different job sites with different supervisors, and as a result, plaintiffs’ claims
involved different witnesses and evidence with very little overlap between the two
cases). Unlike the plaintiffs in Dixon, Kelley and Anderson worked at the same job
site under the same supervisors and rely on much of the same evidence and witnesses.
(Dkt. #12 at 6). Accordingly, Dixon is unhelpful to NBR’s severance request.
Finally, as to NBR’s concern that some evidence relevant to one Plaintiff’s
claims may be prejudicial to NBR concerning the other Plaintiff’s claims, the Court
can mitigate any such potential prejudice through appropriate jury instructions. See
Horne, 2019 WL 5550626, at *6 (“[A]ny prejudice to [the defendant] can be managed
by appropriate limiting instructions.”). Thus, the Court finds that severance is not
necessary to avoid prejudice to NBR.
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E. Witnesses and Documentary Proof
According to NBR, while there may be “limited overlap as to some payroll or
policy witnesses,” “the bulk of the trial proof will not overlap” because the claims are
highly individualized and will require their own evidence and witnesses. (Dkt. #7
at 10). However, as the Court has already noted, the Plaintiffs’ claims share many of
the same questions of law or fact, and as a result, much of the discovery in this case
and many of the witnesses will be the same for both Plaintiffs. See Horne, 2019 WL
5550626, at *6 (“When it is likely there will be a number of witnesses in common
amongst all plaintiffs and judicial economy would be facilitated by not severing the
claims, severance should be denied.”). But see Dixon, 2023 WL 121994, at *3 (granting
motion to sever where plaintiffs’ claims involved different witnesses and evidence,
with very little overlap between the two cases). While some evidence will be unique
to 	each 	Plaintiff, 	NBR 	has 	not 	shown 	that 	the 	evidence 	is 	so 	unique 	and
individualized that it merits the burden of two separate trials when much of the
evidence overlaps.
* 	* 	*
In sum, the record before the Court at this stage of the litigation, particularly
the overlapping potential witnesses and evidence and the common issues of fact or
law, weighs against severance. To the extent that further development of the record
supports a different conclusion, NBR will be permitted to renew its severance request.
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IV. C ONCLUSION
For the foregoing reasons, it is ORDERED that Defendant NBR’s Motion to
Sever (Dkt. #7) is DENIED without prejudice.
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