Johnson et al v. Oscar Winski Company Inc
OPINION AND ORDER DENYING 33 MOTION to Bifurcate and/or Separate Plaintiffs' Claims for Purposes of Summary Judgment and Trial filed by Oscar Winski Company Inc. The Court ORDERS the parties to file any motion for summary judgment by 2/5/2021, with any responses due by 3/5/2021 and any replies due by 3/19/2021. Signed by Judge Joseph S Van Bokkelen on 1/7/21. (ksp)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE
KENNETH JOHNSON and DICKENS
OSCAR WINSKI COMPANY INC,
CAUSE NO.: 4:18-CV-88-JVB-JEM
OPINION AND ORDER
This matter is before the Court on Defendant’s Motion to Separate and/or Bifurcate
Plaintiffs’ Claims [DE 33], filed June 8, 2020. Defendant seeks to bifurcate the two plaintiffs’
claims for summary judgment and trial. Plaintiffs responded in objection on July 6, 2020, and
Defendant replied on July 14, 2020.
In brief, the Complaint alleges as follows: Plaintiffs Kenneth Johnson and Dickens Pierre,
who are African American, were employees of Defendant Oscar Winski Company (“OWC”).
OWC systematically pays African American employees less than similarly situated white
employees, and “passes over” African American employees seeking promotions or higher paying
jobs. Johnson and Pierre, who worked for different supervisors, complained to the company. In
response to their complaints, OWC separately assigned both plaintiffs to work mandatory overtime
shifts, even though OWC knew they both had second jobs. Although the company had
accommodated white employees who could not work mandatory overtime assignments, they did
not do so for Johnson and Pierre. After being absent for several assigned shifts, Johnson and Pierre
were both were fired in October 2017. Johnson and Pierre bring claims of race discrimination and
retaliation under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act.
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OWC seeks to sever or bifurcate the plaintiffs’ claims for purposes of summary judgment
and trial. Federal Rule of Civil Procedure 21 provides that the Court “may at any time, on just
terms, add or drop a party . . . [or] sever a claim against a party.” Fed. R. Civ. P. 21. The Court has
“broad discretion” in deciding whether to sever claims. Rice v. Sunrise Express, Inc., 209 F.3d
1008, 1016 (7th Cir. 2000). The Court considers “the convenience and fairness to parties as well
as the claim’s separability in logic and law,” and the decision should “serve the ends of justice and
facilitate the prompt and efficient disposition of the litigation.” Malibu Media, LLC v. John Does
1-14, No. 1:12-CV-263, 2012 WL 6019259, at *8 (N.D. Ind. Dec. 3, 2012) (citations omitted).
The Court can also consider whether the claims arose from the same transaction or occurrence, the
potential effect on settlement or judicial economy, any prejudice to the parties, and whether
different witnesses and documentary proof are required for the claims. Dada v. Wayne Twp. Tr.’s
Office, No. 1:07-CV-274, 2008 WL 2323485, at *2 (N.D. Ind. May 30, 2008). The Court can order
separate trials “[f]or convenience, to avoid prejudice, or to expedite and economize.” Fed. R. Civ.
OWC argues that the claims should be severed or bifurcated because the terminations were
unrelated to each other. OWC states that both Johnson and Pierre were fired for violations of its
attendance policy, and that each employee was considered separately, by different supervisors,
resulting in separate decisions for termination. OWC also argues that it will be prejudiced if the
plaintiffs’ evidence is presented together at trial, because the jury might wrongly infer that
evidence for one plaintiff supports the other plaintiff’s claims.
OWC overlooks the common questions of law and fact in this action. Plaintiffs allege, in
part, that their termination for attendance violations was discriminatory because white employees
were accommodated when they could not work mandatory overtime shifts. Given the undisputed
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allegation that both plaintiffs were forced to work mandatory overtime, the question of whether
OWC’s overtime practices were discriminatory will rely on common questions of law and fact. 1
OWC argues that each plaintiff must separately show that he “performed reasonably on the job in
accord with [his employer’s] legitimate expectations,” which will require individualized inquiries
for each plaintiff. See David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 225 (7th Cir.
2017). But as OWC points out, neither plaintiff has disputed that he was absent from the mandatory
shifts. The issue appears to turn on whether enforcement of the overtime assignments was
pretextual, which is likely to require evidence common to both plaintiffs.
OWC emphasizes the factual differences between the plaintiffs’ claims. Although
Plaintiffs both allege that they were systematically underpaid and denied promotions and other
benefits because of their race, each plaintiff’s situation is different. For example, Johnson
specifically alleges that he was paid $10.30 per hour, while white workers were paid $10.80 per
hour; Pierre, who earned $16.38 per hour at the time of termination, alleges that he was wrongly
passed over for three specific promotions. Each also alleges discrimination by his individual
supervisors. These factual differences weigh in favor of severance or bifurcation.
However, most of the other factors weigh against severance or bifurcation. Judicial
economy would not be served by creating separate motions for summary judgment – and
potentially two trials – with substantially overlapping legal and factual questions. Although OWC
believes separating the claims will facilitate settlement by “better allow[ing] the parties to consider
each case on its own merits,” it is not clear why the parties cannot do that on their own. OWC
claims it will be prejudiced because of the risk of jury confusion, but that risk is often present in
For the same reasons, OWC’s argument that the claims must be severed because they do not arise from the same
“transaction or occurrence” also fails. A “company-wide discriminatory policy,” such as those alleged here by
Plaintiffs regarding overtime, compensation, and promotion, constitutes a single “transaction or occurrence.” See, e.g.,
Davis v. Packer Eng’g, Inc., No. 11-CV-07923, 2016 WL 11689521, at *3 (N.D. Ill. Nov. 14, 2016).
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cases with multiple plaintiffs. Unlike Bailey v. Northern Trust, the jury confusion case relied on
by OWC, this case does not appear to be unusually complex, varied, or confusing. Cf. Bailey v. N.
Tr. Co., 196 F.R.D. 513 (N.D. Ill. 2000) (severing claims of five plaintiffs with “no evidence . . .
of a discrete policy that affected each plaintiff”).
For these reasons, the Court hereby DENIES Defendant’s Motion to Separate and/or
Bifurcate Plaintiffs’ Claims [DE 33]. The Court ORDERS the parties to file any motion for
summary judgment by February 5, 2021, with any responses due by March 5, 2021, and any
replies due by March 19, 2021.
SO ORDERED on January 7, 2021.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN, JUDGE
UNITED STATES DISTRICT COURT
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