# Cochran v. Boar's Head Provisions Company Inc

> District Court, E.D. Arkansas · February 10, 2021

URL: https://www.frixlaw.com/law-library/cases/10005328

## Case

- **Court:** District Court, E.D. Arkansas
- **Decided:** February 10, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10005328

## How later opinions describe it (automated extraction)

- noting that Title VII and ACRA claims “are governed by the same standards”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
DELTA DIVISION

SARAH COCHRAN and PLAINTIFFS
TIFFANY WARD

v. Case No. 2:20-cv-00134-KGB

BOAR’S HEAD PROVISIONS DEFENDANTS
COMPANY INC., et al.

ORDER

Before the Court is a motion to dismiss or in the alternative motion to sever or order
separate trials filed by defendants Boar’s Head Provisions Company, Inc. (“Boar’s Head”), Patricia
Byers, and Gillette Drone (collectively, “defendants”) (Dkt. No. 3). Plaintiffs Sarah Cochran and
Tiffany Ward (collectively, “plaintiffs”) have filed a response (Dkt. No. 9). For the following
reasons, the Court grants, in part, and denies, in part, defendants’ motion to dismiss or in the
alternative motion to sever or order separate trials (Dkt. No. 3).
I. Background
Plaintiffs initially filed this action in the Circuit Court of St. Francis County, Arkansas, on
May 7, 2020 (Dkt. No. 2). Plaintiffs were both Boar’s Head employees when their causes of action
arose, and plaintiffs assert that they were terminated discriminatorily in violation of the Arkansas
Civil Rights Act of 1993 (“ACRA”), Arkansas Code Annotated § 16-123-107, et seq. (Id., ¶ 2).
On June 17, 2020, defendants removed this action from the Circuit Court of St. Francis County,
Arkansas, to this Court (Dkt. No. 1).
A. Ms. Cochran’s Allegations
Plaintiffs present Ms. Cochran’s cause of action as follows (Dkt. No. 2, ¶¶ 15-21). On
September 9, 2019, Ms. Cochran was involved in a car wreck (Id., ¶ 15). Ms. Cochran had
previously undergone extensive lumbar surgery in the form of a spinal fusion, and she experienced
immediate pain in that area after the wreck as well as later weakness and paralysis in both her right
arm and right leg (Id.). Ms. Cochran was hospitalized for two days at University of Arkansas for
Medical Sciences in Little Rock (Id.). Ms. Cochran’s daughter called Ms. Byers to inform her that
Ms. Cochran was in the hospital; Ms. Cochran’s daughter was not informed that company rules

required a call each day that Ms. Cochran was in the hospital (Id.). When Ms. Cochran was
discharged from the hospital, she called Ms. Byers to ask when she might return to work (Id., ¶
17). Ms. Byers said that she would call Ms. Cochran back, but she did not call back for about a
week (Id.). On September 18, 2019, Ms. Cochran was informed by the Human Resources
Department (“HR”) at Boar’s Head that she was being terminated for failure to call two days in a
row (Id.). Ms. Cochran’s Family and Medical Leave Act (“FMLA”) coverage, health insurance,
AFLAC insurance, and all other benefits were cancelled (Id.).
Plaintiffs assert that Ms. Cochran was entitled to be free from discrimination “because . . .
the presence of any sensory, mental, or physical disability is recognized as and declared to be a

civil right” under Arkansas Code Annotated § 16-123-107(a) (Id., ¶ 18). Plaintiffs allege that Ms.
Cochran was operating under a disability—and defendants regarded her as having a disability—
when defendants discriminated against her by firing her and terminating her insurance and other
benefits (Id.). Plaintiffs maintain that defendants discriminated against Ms. Cochran by failing to
provide her reasonable accommodation under the circumstances and by firing her after her
discharge from the hospital, in violation of Arkansas Code Annotated § 16-123-102(3) (Id., ¶¶ 18-
19). Plaintiffs allege that defendants violated Ms. Cochran’s right to obtain and hold employment
without discrimination in violation of Arkansas Code Annotated § 16-123-102(3) and refused to
provide reasonable accommodation in violation of Arkansas Code Annotated § 16-123-107(a) (Id.,
¶ 20).
As a result of defendants’ alleged violations, plaintiffs allege that Ms. Cochran has lost a
significant sum of income in the past and will continue to do so in the future; stands unable to pay
the medical bills she incurred for her treatment and surgery; has lost the fringe benefits of her

employment; remains unable to procure employment due to her having been fired by Boar’s Head;
remains unable to pay her bills, which has caused chaos in her life; and has incurred and will incur
substantial attorneys’ fees (Id., ¶ 21).
B. Ms. Ward’s Allegations
Plaintiffs present Ms. Ward’s cause of action as follows (Dkt. No. 2, ¶¶ 3-14). Ms. Ward
presented to the emergency room with severe and sharp abdominal pain on June 2, 2019 (Id., ¶ 3).
Ms. Ward was treated and released from the emergency room and directed to see her primary care
physician; her primary care physician immediately admitted her to CrossRidge Hospital (Id.). Ms.
Ward called Boar’s Head and reported her inability to come to work to HR at Boar’s Head (Id.).

Additionally, Ms. Ward’s fiancée, John Steverson, asked HR to credit Ms. Ward with two of his
vacation days so as to offset June 3 and June 4, the two days that Ms. Ward was hospitalized at
CrossRidge (Id., ¶ 9). Ms. Ward’s condition worsened, and she was transferred to St. Bernard’s
Hospital in Jonesboro, Arkansas, on June 5, 2019 (Id., ¶ 3). Each day that she was absent, Ms.
Ward notified HR at Boar’s Head prior to the end of her shift, as was required by Boar’s Head
(Id.). Also on June 5, 2019, Ms. Ward informed a woman named Wendy in HR that she was going
to have to undergo surgery and be out for some time, and Wendy informed Ms. Ward that she
would not have to call back since HR now knew that she was going to be hospitalized (Id., ¶ 9).
Ms. Ward experienced complications at St. Bernard’s which led to her undergoing surgery
on June 10, 2019 (Id., ¶¶ 4-5). Each day that Ms. Ward was absent, she or Mr. Steverson called
HR at Boar’s Head to report that she would not be present, and Ms. Ward called Boar’s Head prior
to her surgery to advise it of her condition and why she was absent (Id., ¶ 5). On June 11, 2019,
Ms. Ward called Boar’s Head to advise that she had undergone surgery and would be absent from

work for some time after her discharge (Id., ¶ 6).
Upon her discharge on June 18, 2019, a nurse informed Ms. Ward that her insurance had
been cancelled by Boar’s Head due to her allegedly not having called in sick (Id.). Ms. Ward
called Ms. Byers, who worked in HR at Boar’s Head but was told that Ms. Byers was busy (Id.).
Mr. Steverson went to see Ms. Byers to ask if Ms. Ward’s insurance could be reinstated, but Ms.
Byers told him that it could not be reinstated because Ms. Ward had already been terminated (Id.).
Plaintiffs assert that either Ms. Drone or Ms. Byers stated that Ms. Ward failed to call and advise
that she would be absent on either June 10 or June 11 (Id.). Mr. Steverson offered to show a
screenshot proving that Ms. Ward had called on both June 10 and June 11, but Ms. Drone and Ms.

Byers demurred (Id., ¶¶ 6, 10). Ms. Ward repeatedly attempted to call Tim Botham, the plant
manager, regarding her situation, but she was unsuccessful (Id., ¶ 7).
Plaintiffs allege that Ms. Ward was entitled to be free from discrimination “because . . . the
presence of any sensory, mental, or physical disability is recognized as and declared to be a civil
right” under Arkansas Code Annotated § 16-123-107(a) (Id., ¶ 11). Plaintiffs allege that Ms. Ward
was operating under a disability—and defendants regarded her as having a disability—when
defendants discriminated against her by firing her and terminating her insurance and other benefits
(Id., ¶ 12). Plaintiffs maintain that defendants discriminated against Ms. Ward “by failing to
provide her reasonable accommodation under the circumstances and by firing her, after her
discharge from the hospital” (Id.). Plaintiffs allege that defendants violated Ms. Ward’s right to
obtain and hold employment without discrimination in violation of Arkansas Code Annotated §
16-123-102(3) and refused to provide reasonable accommodation in violation of Arkansas Code
Annotated § 16-123-107(a) (Id., ¶ 13).
As a result of defendants’ alleged violations, plaintiffs allege that Ms. Ward has lost a

significant sum of income in the past and will continue to do so in the future; stands unable to pay
the medical bills she incurred for her treatment and surgery; has lost the fringe benefits of her
employment; remains unable to procure employment due to her having been fired by Boar’s Head;
remains unable to pay her bills, which has caused chaos in her life; and has incurred and will incur
substantial attorneys’ fees (Id., ¶ 14).
II. Analysis
Defendants move to dismiss plaintiffs’ complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) “because the Complaint fails to state facts that plausibly suggest that an ACRA
violation or unlawful discrimination occurred as to either Plaintiff” (Dkt. No. 3, ¶ 2). Defendants

argue that the ACRA does not require private employers to make reasonable accommodations for
disabled employees and that, as a result, plaintiffs’ failure to accommodate claims fail to state a
cause of action for which relief may be granted (Id., ¶ 3). Defendants also argue based on the facts
asserted in the complaint that plaintiffs’ alleged medical conditions are not covered disabilities
under the ACRA and that plaintiffs are not entitled to protections from any alleged disability
discrimination (Id., ¶ 4). Defendants maintain that individual supervisor liability of the sort
asserted against Ms. Drone and Ms. Byers is undisputedly barred under the ACRA pursuant to
Arkansas Code Annotated § 16-123-107(c)(1)(A) (Id., ¶ 5). Defendants assert that plaintiffs’
claims under the respondeat superior doctrine cannot survive as plaintiffs have alleged no
intentional tort committed by Ms. Drone or Ms. Byers (Id., ¶ 6).
Should the Court decline to dismiss all of plaintiffs’ claims, defendants maintain that
plaintiffs’ claims should be severed as Ms. Cochran’s and Ms. Ward’s claims do not arise out of
the same transaction or occurrence and stem from separate and unrelated fact patterns (Id., ¶ 8).

Defendants assert that joinder of these two individual alleged discrimination cases is improper
under Federal Rule of Civil Procedure 20 and that plaintiffs’ claims should be severed in
accordance with Federal Rule of Civil Procedure 21 (Id.). In the alternative, defendants cite
Federal Rule of Civil Procedure 42(b) and ask the Court to order separate trials or “mini-trials” in
the interest of justice and in order to avoid the significant potential for prejudice against Boar’s
Head that would result if plaintiffs’ cases were presented simultaneously (Id., ¶ 9).
In response, plaintiffs maintain that their complaint is properly pleaded (Dkt. No. 10, at 3-
12). Plaintiffs argue that wrongful termination is explicitly actionable under the ACRA and that
they have alleged adequate facts to support a disability under the ACRA (Id., at 4-12). Plaintiffs

argue that their complaint demonstrates a prima facie claim for disability discrimination, including
a prima facie case that plaintiffs were disabled under the ACRA and fired as a result (Id., at 6-12).
Further, plaintiffs argue that Ms. Drone and Ms. Byers’ actions should be imputed to Boar’s Head
under the doctrine of respondeat superior (Id., at 13-14). Additionally, plaintiffs assert that their
claims are properly joined under Federal Rule of Civil Procedure 20 (Id., at 14-18). Finally,
plaintiffs argue that defendants fail to suggest how they might be prejudiced absent severance of
claims or the ordering of separate trials (Id., at 18-19).
A. Motion To Dismiss
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “While a complaint attacked
by a [Federal] Rule [of Civil Procedure] 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555 (citations omitted). “[T]he complaint must contain facts
which state a claim as a matter of law and must not be conclusory.” Briehl v. General Motors
Corp., 172 F.3d 623, 627 (8th Cir. 1999) (citing Frey v. City of Herculaneum, 44 F.3d 667, 671
(8th Cir. 1995)). “When ruling on a motion to dismiss, the district court must accept the allegations

contained in the complaint as true and all reasonable inferences from the complaint must be drawn
in favor of the nonmoving party.” Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001).
A complaint in an employment discrimination lawsuit need not contain specific facts establishing
a prima facie case of discrimination. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-12
(2002). Courts ruling on motions to dismiss in these contexts do not “require heightened fact
pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. 544, at 569-70.
1. Disability Discrimination Under The ACRA
The ACRA prohibits discrimination by employers on the basis of “race, religion, national
origin, gender, or the presence of any sensory, mental, or physical disability.” Ark. Code Ann. §
16-123-107(a)(1). With this protection, “otherwise qualified person[s],” including those with
disabilities, have “[t]he right to obtain and hold employment without discrimination.” Id. The

ACRA defines “disability” as “a physical or mental impairment that substantially limits a major
life function.” Ark. Code Ann. § 16-123-102(3). Violations of the ACRA are evaluated under the
Title VII discrimination framework and relevant federal case law and regulations prohibiting
disparate treatment. See McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 860 (8th Cir.
2009) (noting that Title VII and ACRA claims “are governed by the same standards”); see also
Rinchuso v. Brookshire Grocery Co., 944 F.3d 725, 729 (8th Cir. 2019) (citing Greenlee v. J.B.
Hunt Transp. Servs., 342 S.W.3d 274, 277-79 (Ark. 2009)). For claims of disability
discrimination, courts “analyze a disability claim presented under the ACRA using the same
principles employed in analyzing claims under the Americans with Disabilities Act (‘ADA’), 42

U.S.C. § 12101 et seq.” Duty v. Norton–Alcoa Proppants, 293 F.3d 481, 490 (8th Cir. 2002)
(citations omitted).
The ADA prohibits employers from discriminating against a disabled individual qualified
for a job because of such individual’s disability. See 42 U.S.C. § 12112(a). In order to obtain
relief under the ADA, a plaintiff must show that: (1) she is a “qualified individual” under the
ADA, (2) she suffered discrimination as the term is defined by the ADA, and (3) the discrimination
was based on disability as defined by the ADA. See Brown v. City of Jacksonville, 711 F.3d 883,
888 (8th Cir. 2013). A “qualified individual” is a person with a qualifying disability who can
“perform the essential functions of the employment position . . . with or without reasonable
accommodation.” 42 U.S.C. § 12111(8). Additionally, “‘discriminat[ion]’ under the ADA, means
an ‘adverse employment action.’” Brown, 711 F.3d at 888 (quoting Bensons v. Nw. Airlines, Inc.,
62 F.3d 1108, 1112 (8th Cir. 1995)).
Defendants argue that plaintiffs’ disability discrimination claims—namely, plaintiffs’
claims of discriminatory termination—must be dismissed because plaintiffs were not disabled

under the ACRA (Dkt. No. 4, at 7-12). Defendants assert that plaintiffs “state in a conclusory
fashion that they operated under disabilities and that defendants regarded them as having
disabilities to demonstrate their terminations were unlawful” without “demonstrating how and
what major life functions were impaired” (Id., at 7). In doing so, defendants claim that plaintiffs
“failed to allege sufficient facts to show that either of them were disabled within the meaning of
the ACRA” (Id., at 7-8). Defendants state that plaintiffs have “alleged medical conditions that
were temporary impairments, similar to that of appendicitis, concussions, and sprained joints,” and
that “[s]uch conditions are not disabilities within the meaning of the ACRA” (Id., at 10). Plaintiffs
assert that they have alleged adequate facts to support a finding that they were disabled under the

ACRA (Dkt. No. 10, at 5-12). Plaintiffs maintain that they are actually disabled under the ACRA
rather than merely “regarded as” disabled by defendants (Id.).
Under the ACRA, a plaintiff must be actually disabled as opposed to merely “regarded as”
disabled by her employer. Compare Wang v. Walmart Stores, Inc., 424 Fed. App’x 608, 609 (8th
Cir. 2011), and Faulkner v. Ark. Children’s Hosp., 69 S.W.3d 393, 400-02 (Ark. 2002), with 42
U.S.C. § 12102. The Court understands plaintiffs to allege that Ms. Cochran and Ms. Ward both
had actual disabilities as defined by the ADA and ACRA rather than that defendants merely
regarded plaintiffs as being disabled. To the extent plaintiffs’ claims rely on allegations that
plaintiffs were “regard as” as disabled by plaintiffs, such claims are not actionable under the ACRA
and are therefore dismissed.
The definition of disability “is virtually the same in both [the ADA and ACRA]: substantial
limitation in a major life activity.” Faulkner, 69 S.W.3d at 401; see also 29 C.F.R. Pt. 1630, App.
(“[A]n impairment is a disability if it substantially limits the ability of an individual to perform a

major life activity as compared to most people in the general population.”). “‘Major life activities’
includes ‘caring for oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working,’” Conant v. City of Hibbing, 271 F.3d 782, 784 (8th Cir. 2001)
(per curiam) (quoting 29 C.F.R. § 1630.2(i)), as well as “the operation of a major bodily function,
including but not limited to, functions of the immune system, normal cell growth, digestive, bowel,
bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions,” 42
U.S.C. § 12102(2)(B). Though the ADA and the ACRA have broad definitions of disability, “not
every impairment will constitute a disability within the meaning of [the ADA and its regulations].”
See 29 C.F.R. § 1630.2(j)(1)(ii).

Plaintiffs claim that Ms. Cochran alleged a chronic or remitting/relapsing condition that
qualifies as a “physical or mental impairment” because it is a “physiological . . . condition . . . or
anatomical loss affecting one or more body systems,” including Ms. Cochran’s neurological and
musculoskeletal systems (Dkt. No. 10, at 11). 29 C.F.R. § 1630.2(h)(1). Accepting the factual
allegations in the complaint as true, the Court concludes that plaintiffs have presented sufficient
allegations to support a finding that Ms. Cochran had an actual disability under the ACRA. At this
stage of the litigation, the Court determines that plaintiffs have plead plausibly that Ms. Cochran
is actually disabled under the ACRA.
Regarding Ms. Ward, plaintiffs claim that Ms. Ward alleged a chronic or
remitting/relapsing condition that qualifies as a “physical or mental impairment” because it is a
“physiological . . . condition . . . or anatomical loss affecting one or more body systems,” including
Ms. Ward’s neurological, reproductive, digestive, and musculoskeletal systems (Dkt. No. 10, at
9). 29 C.F.R. § 1630.2(h)(1); see also Otting v. J.C. Penney Co., 223 F.3d 704, 708 (8th Cir.

2000). Accepting the factual allegations in the complaint as true, the Court concludes that
plaintiffs have presented sufficient allegations to support a finding that Ms. Ward had an actual
disability under the ACRA. At this stage of the litigation, the Court determines that plaintiffs have
plead plausibly that Ms. Ward is actually disabled under the ACRA.
Accordingly, the Court denies defendants’ motion to dismiss to the extent it argues that
plaintiffs are not actually disabled under the ACRA. To the extent plaintiffs’ claims rely on
allegations that plaintiffs were “regard as” as disabled by plaintiffs, such claims are not actionable
under the ACRA and are therefore dismissed.
2. Failure To Accommodate

Defendants claim that plaintiffs’ failure to accommodate claims should be dismissed
because the ACRA does not include a reasonable accommodation provision (Dkt. No. 4, at 5-7).
In support of this argument, defendants cite two unpublished cases from Arkansas federal district
courts dating from 2001 and 2002. See, e.g., Dunlap v. Green Bay Packaging, No. 4:01CV00398,
at *2 (E.D. Ark. Oct. 1, 2002) (finding that “the ACRA contains no express provision for a cause
of action based upon failure to accommodate” and that “expand[ing]” the ACRA to include such
a cause of action would be “akin to legislating”); McAvoy v. Wal-Mart Assocs., Inc., No. 00-1092,
at *6 (W.D. Ark. July 26, 2001) (“In any event, the ACRA, unlike the ADA, has no provision
requiring employers to provide a reasonable accommodation.”).
However, the Eighth Circuit Court of Appeals has made clear that courts are to “analyze a
disability claim presented under the ACRA using the same principles employed in analyzing
claims under the [ADA].” Duty v. Norton–Alcoa Proppants, 293 F.3d 481, 490 (8th Cir. 2002).
Further, in Battle v. United Parcel Service, Inc., 438 F.3d 856, 860–61 (8th Cir. 2006), the Eighth
Circuit examined defendant UPS’s arguments on appeal regarding the denial of its post-trial

motion for judgment as a matter of law on the failure-to-accommodate claims under the ADA
and ACRA, again determining that ADA and ACRA claims are reviewed under the same
principles. Id. (citing Duty v. Norton–Alcoa Proppants, 293 F.3d 481, 490 (8th Cir. 2002); Greer
v. Emerson Elec. Co., 185 F.3d 917, 920–21 (8th Cir. 1999)). Likewise, in Huber v. Wal-Mart
Stores, Inc., 486 F.3d 480, 482 (8th Cir. 2007), the Eighth Circuit examined under the ADA and
ACRA whether, when because of her disability plaintiff Huber sought, as a reasonable
accommodation, reassignment to a router position, which the parties stipulated was a vacant and
equivalent position under the ADA, it was appropriate for defendant Wal–Mart not to agree to
reassign Huber automatically to the router position. Id. at 481. In Johnson v. Windstream

Communications, Inc., 545 S.W.3d 234 (Ark. Ct. App. 2018), the Arkansas Court of Appeals
acknowledged that a former employee brought claims for alleged violations of the ADA and
ACRA and proceeded to examine arguments on appeal regarding jury instructions given with
respect to a failure-to-accommodate claim based on disability. The Arkansas Court of Appeals in
Johnson was silent as to whether the ACRA provides for such a claim, proceeding to examine the
claim under ADA principles.
The Court acknowledges that plaintiffs do not specifically respond in their briefing to
defendants’ arguments regarding plaintiffs’ failure to accommodate claims under the ACRA. At
this stage of the litigation and based on the limited briefing from the parties, the Court is reluctant
to grant defendants’ motion to dismiss as it pertains to plaintiffs’ reasonable accommodation
claims under the ACRA.
3. Plaintiffs’ Individual Capacity Claims Against Ms. Drone And
Ms. Byers

Next, defendants argue that plaintiffs’ individual capacity claims against Ms. Drone and
Ms. Byers under the ACRA must be dismissed because ACRA claims can only be brought against
an employer (Dkt. No. 4, at 12-13). In their response, plaintiffs do not appear to dispute this
argument (Dkt. No. 10). The law on this point accords with defendants’ contention. The ACRA
provides that “[a]ny individual who is injured by employment discrimination by an employer in
violation of subdivision (a)(1) of this section”—the subdivision under which plaintiffs prosecute
this action—“shall have a civil action against the employer only in a court of competent
jurisdiction.” Ark. Code Ann. § 16-123-107(c)(1)(A). The ACRA defines an “employer” as “a
person who employs nine (9) or more employees in the State of Arkansas in each of twenty (20)
or more calendar weeks in the current or preceding calendar year.” Ark. Code Ann. § 16-123-
102(5). Neither Ms. Drone nor Ms. Byers were plaintiffs’ “employer” within the ACRA’s
definition of the term, and the ACRA makes clear that plaintiffs may only bring employment-
related discrimination claims against their employer under the ACRA. See id.
Accordingly, the Court grants defendants’ motion to dismiss as it pertains to plaintiffs’
claims against Ms. Drone and Ms. Byers as individual defendants.1 Accordingly, the Court
dismisses Ms. Drone and Ms. Byers as individual defendants in this action.

1 Under 28 U.S.C. § 1441(a), “any civil action brought in a State court . . . may be removed
by the defendant or the defendants” as long as federal district courts would have “original
jurisdiction” over the case. Such jurisdiction comes in two varieties. Federal courts have “federal
question jurisdiction” if the case “aris[es] under” federal law. 28 U.S.C. § 1331. Even when the
plaintiff brings only state-law claims—alleging a breach of a contract, for example—federal courts
have “diversity jurisdiction” if the amount in controversy exceeds $75,000.00 and there is
4. Respondeat Superior
Next, defendants argue that plaintiffs’ claims under the respondeat superior doctrine
cannot be maintained as plaintiffs have not alleged any intentional torts committed by Ms. Drone
and Ms. Byers (Dkt. No. 4, at 13). Plaintiffs assert that the acts of Ms. Drone and Ms. Byers are

imputed to Boar’s Head under the doctrine of respondeat superior, though they do not cite any
case law in support of this contention (Dkt. No. 10, at 13-14).
The Arkansas Supreme Court has determined that “[t]he doctrine of respondeat superior
is not a basis for liability under the Arkansas Civil Rights Act.” City of Little Rock v. Nelson as
Next Friend of Nelson, 592 S.W.3d 633, 641 (Ark. 2020) (citing Jones v. Huckabee, 250 S.W.3d
241, 246 (Ark. 2007)). Plaintiffs also name as a defendant Boar’s Head, and Boar’s Head is a
proper defendant under the ACRA for plaintiffs’ claims of disability discrimination, which the
Court does not dismiss at this stage of the litigation.
B. Motion To Sever

Defendants maintain that, to the extent the Court does not dismiss all of plaintiffs’ claims,
plaintiffs’ remaining claims should be severed (Dkt. No. 3, ¶ 8). Defendants assert that Ms.
Cochran’s and Ms. Ward’s claims “do not arise out of the same transaction, or occurrence, or series
of the same transactions or occurrences” (Id.). Defendants state that “[t]he two matters stem from

complete diversity of parties, meaning that no plaintiff is a citizen of the same State as any
defendant. 28 U.S.C. § 1332(a); Lincoln Property Co. v. Roche, 546 U. S. 81, 89 (2005). While §
1441 normally allows removal of either kind of case, it bars removal in diversity cases where “any
of the parties in interest properly joined and served as defendants is a citizen of the State in which
such action is brought.” § 1441(b)(2). The Court notes that Ms. Drone and Ms. Byers are both
Arkansas citizens (Dkt. No. 1, ¶ 2). However, because plaintiffs assert no colorable claims against
Ms. Drone and Ms. Byers as individual defendants, the § 1441(b)(2) prohibition on removal in
diversity cases brought in the home state of any defendant does not apply.
entirely separate fact patterns and are wholly unrelated” and that “joinder of these two individual
alleged discrimination cases is improper” (Id.). Defendants believe plaintiffs’ claims should be
severed in accordance with Federal Rule of Civil Procedure 21 and insist that each plaintiff should
then proceed separately and individually (Id.). In the alternative, defendants posit that the Court
should order separate trials or “mini-trials” in order to avoid the significant potential for prejudice

against defendants that would result if plaintiffs’ cases were presented simultaneously (Id., ¶ 9).
In response, plaintiffs maintain that joinder is appropriate in this action (Dkt. No. 10, at 14-
19). Plaintiffs argue that defendants’ treatment of them was essentially a “mirror image” in that
both plaintiffs were hospitalized, gave notice that they would not be at work, had their health
insurance cancelled immediately, and were fired (Id., at 14). Plaintiffs maintain that their claims
feature both commonality of fact and commonality of law (Id., at 14-18). Additionally, plaintiffs
maintain that prosecuting this action as joined plaintiffs would avoid prejudice and delay, ensure
judicial economy, and safeguard principles of fundamental fairness (Id., at 14-15). Finally,
plaintiffs argue that defendants fail to suggest or show how they might be prejudiced by plaintiffs

remaining joined in this action (Id., at 18-19).
1. Federal Rules Of Civil Procedure 20 And 21
Federal Rule of Civil Procedure 20(a)(1) “allows multiple plaintiffs to join in a single
action if (i) they assert claims ‘with respect to or arising out of the same transaction, occurrence,
or series of transactions or occurrences;’ and (ii) ‘any question of law or fact common to all
plaintiffs will arise in the action.’” In re Prempro Prods. Liab. Litig., 591 F.3d 613, 622 (8th Cir.
2010) (quoting Fed. R. Civ. P. 20(a)(1)). “In construing Rule 20, the Eighth Circuit has provided
a very broad definition for the term ‘transaction.’” Id. No hard and fast rules have been established
under Rule 20 regarding what constitutes a transaction, but the Eighth Circuit has offered the
following guidance:
“Transaction” is a word of flexible meaning. It may comprehend a series of many
occurrences, depending not so much upon the immediateness of their connection as
upon their logical relationship. Accordingly, all “logically related” events entitling
a person to institute a legal action against another generally are regarded as
comprising a transaction or occurrence. The analogous interpretation of the terms
as used in Rule 20 would permit all reasonably related claims for relief by or against
different parties to be tried in a single proceeding. Absolute identity of all events
is unnecessary.

Id. (quoting Mosley v. Gen. Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974)); see also 7 Charles
A. Wright et al., Federal Practice and Procedure, § 1653, at 415 (3d ed. 2001) (explaining that
the transaction or occurrence requirement prescribed by Rule 20(a) is not a rigid test and is meant
to be “read as broadly as possible whenever doing so is likely to promote judicial economy.”).
“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.” Mosley, 497 F.2d at 1332-33 (citing United Mine Workers of Am. v. Gibbs, 383 U.S.
715, 724 (1966)).
If the parties are improperly joined, the Court “may at any time, on just terms, add or drop
a party,” and “may also sever any claim against a party.” Fed. R. Civ. P. 21. It is “permissible to
sever [plaintiffs’] claims into separate actions because of the need to avoid possible confusion or
substantial prejudice.” Strandlund v. Hawley, 532 F.3d 741, 746 (8th Cir. 2008). “[W]hen a court
‘severs’ a claim against a defendant under Rule 21, the suit simply continues against the severed
defendant in another guise.” DirecTV, Inc. v. Leto, 467 F.3d 842, 845 (3d Cir. 2006) (citations
omitted); see also United States 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.”). A district court's decision to sever claims
into separate actions is reviewed for abuse of discretion. See Reinholdson v. Minnesota, 346 F.3d
847, 850 (8th Cir. 2003) (citing Mosley, 497 F.2d at 1332).
2. Analysis
After considering the Rule 20 joinder standards, the Court concludes that defendants have

not established that plaintiffs’ claims are egregiously misjoined and require severance. On the
record before the Court, the Court considers the factual allegations underlying Ms. Cochran’s and
Ms. Ward’s claims to be “logically related.” Plaintiffs’ claims arise from hospitalizations that led
to alleged disability discrimination and plaintiffs’ ultimate terminations. Both plaintiffs were
hospitalized, engaged with HR at Boar’s Head, and were terminated in a manner that plaintiffs
allege represents impermissible disability discrimination under the ACRA. In particular, both
plaintiffs were fired for allegedly violating Boar’s Head’s attendance policy, which both plaintiffs
assert is not the true reason they were fired. Given the broad guidance offered by the Eighth
Circuit, the Court considers plaintiffs’ claims to arise out of the same transaction or occurrence or

series of transactions and occurrences.
Accordingly, the Court denies without prejudice defendants’ motion to the extent it seeks
to sever plaintiffs’ claims (Dkt. No. 3). If, as this case develops, additional facts or circumstances
arise that show separate trials may be warranted, defendants may renew their motion to sever
plaintiffs’ claims
C. Motion For Separate Trials
As a final alternative, defendants ask the Court to order separate trials, or in the alternative,
“mini-trials,” in order to avoid prejudice to Boar’s Head resulting from plaintiffs’ cases being
presented simultaneously (Dkt. No. 4, at 16). Defendants maintain that the Court may be forced
to admit evidence it would otherwise exclude and instruct the jury that the evidence can be
considered only in support of a particular plaintiff’s claim and cannot be considered in the claims
of the other plaintiff (Id., at 17). Defendants argue that plaintiffs’ claims involve different factual
situations, different positions, and different time periods and that a single trial would require the
jury to keep separate each plaintiff’s individualized claims and circumstances (Id.). Given this

combination of factors, defendants contend that a single trial of plaintiffs’ claims would impose
substantial prejudice (Id., at 17-18). Plaintiffs argue that defendants fail to demonstrate how they
might be prejudiced by proceeding with a single trial in this action (Dkt. No. 10, at 18). Plaintiffs
claim that members of the jury would be able to keep track of the facts in of both plaintiffs’ cases
(Id., at 19).
1. Federal Rule Of Civil Procedure 42(b)
Rule 42(b) provides that “[f]or convenience, to avoid prejudice, or to expedite and
economize, the court may order a separate trial of one or more separate issues, claims, crossclaims,
counterclaims, or third-party claims.” Fed. R. Civ. P. 42(b). “When ordering a separate trial, the

court must preserve any federal right to a jury trial.” Id. Under Rule 42(b), a court has discretion
to order separate trials or make other orders to prevent delay or prejudice. See Mosley, 497 F.2d
at 1332. The party seeking separate trials has the burden of showing that separate trials will
promote convenience, expedite the proceedings, or avoid unfair prejudice. See Langrell v. Union
Pac. R.R. Co., No. 5:12CV00084 JLH, 2012 WL 3041312, at *2 (E.D. Ark. July 25, 2012). In
deciding a motion for separate trials, “a court should consider the interests of judicial economy
and avoiding confusion.” Koch Fuels, Inc. v. Cargo of 13,000 Barrels of No. 2 Oil, 704 F.2d 1038,
1042 (8th Cir. 1983).
2. Analysis
In this case, defendants assert that they will suffer undue prejudice if plaintiffs’ cases are
presented simultaneously. Ms. Cochran and Ms. Ward both allege that they were fired due to
disability discrimination after separate hospitalizations and communications with HR at Boar’s
Head. The Court concludes based on the materials before it that defendants have not met their

burden to show that trying these claims separately will promote convenience, expedite the
proceedings, or avoid unfair prejudice. At this stage of the litigation, there is insufficient record
evidence to demonstrate that plaintiffs’ claims are so different that separate trials are necessary.
The Court can make evidentiary decisions as they arise, and defendants’ concerns regarding
evidentiary matters in this case are based on speculation at this point rather than concrete evidence
that has been discovered or that they expect to be discovered in this case. Further, the Court is
confident that issues of proof pertaining to plaintiffs’ individualized claims can be adequately
addressed by appropriate jury instructions.
Accordingly, the Court denies without prejudice defendants’ motion to the extent it seeks

separate trials, or in the alternative, “mini-trials” (Dkt. No. 3). If, as this case develops, additional
facts or circumstances arise that show separate trials may be warranted, defendants may renew
their motion for separate trials.
III. Conclusion
For the above reasons, the Court grants, in part, and denies, in part, defendants’ motion to
dismiss (Dkt. No. 3). It is therefore ordered that:
1. Plaintiffs may proceed with their claims against defendant Boar’s Head that they
were fired due to disability discrimination claim under the ACRA;
2. at this stage of the litigation, for the reasons explained, the Court declines to dismiss
plaintiffs’ failure to accommodate claims under the ACRA;
3. Plaintiffs’ individual capacity claims against Ms. Drone and Ms. Byers are
dismissed;
4, Defendants’ motion to sever plaintiffs’ claims is denied without prejudice; and
5. Defendants’ motion for separate trials, or in the alternative “mini-trials,” is denied
without prejudice.
So ordered this 10th day of February, 2021.

Kushn 4. Palin
Kristine G. Baker
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10005328. Public record. Not legal advice.