HENSON v. U.S. FOODSERVICE, INC. et al

Filing 70

MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 8/15/2013. (TH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ROBERT HENSON,
Plaintiff,
Civil Action
No. 11-1809 (JBS/KMW)

v.
U.S. FOODSERVICE, INC., et
al.,
Defendants.

MEMORANDUM OPINION

SIMANDLE, Chief Judge:
This matter comes before the Court on Plaintiff Robert
Henson’s motion to consolidate [Docket Item 52] this action,
Henson v. U.S. Foodservice, Inc., Civ. 11-1809 (JBS/KMW), with
the later filed action in Moore v. U.S. Foodservice, Inc., Civ.
11-2460 (JHR/JS). Plaintiff’s motion will be denied. The Court
finds as follows:
1.

Plaintiff Robert Henson filed suit against his former

employer, Defendant U.S. Foodservice, alleging that Defendant
interfered with his rights under the Family Medical Leave Act
(“FMLA”) and terminated him in retaliation for exercising his
FMLA rights. Henson also alleges that Defendant violated the New
Jersey Law Against Discrimination (“NJLAD”) because he was
subject to a hostile work environment and his termination was
discriminatory. Plaintiff Darwin Moore brought suit against his
former employer, who is also U.S. Foodservice, alleging that
U.S. Foodservice interfered with his FMLA rights, terminated him

in retaliation for exercising his FMLA rights, and terminated
him for discriminatory reasons in violation of the NJLAD. Moore
originally asserted a hostile work environment claim under the
NJLAD, but he withdrew that claim. Both Moore and Henson are
African-American. Plaintiffs Henson and Moore are represented by
the same attorneys.
2.

Plaintiff Henson argues that the Henson and Moore

actions should be consolidated because both Plaintiffs “rely
upon nearly uniform evidence.” (Pl. Mem. Supp. Mot. Consol. at
1.) Plaintiff notes that both cases have summary judgment
motions that are presently pending, and Plaintiff argues that
there are common questions that risk inconsistent results at
summary judgment and at trial. Plaintiff asserts that the common
questions are:
(1) Direct evidence on the respective retaliation
claims and whether the Third Circuit will accept a
mixed motive charge . . .; (2) How comparator evidence
will be evaluated; (3) The comparators for each case
are the same, and would take at least two days of
trial, and both Plaintiffs are comparators for one
another;
(4)
Both
make
claims
about
the
work
environment which again the overlap on witnesses will
again be days; and (5) In the end, both of these cases
may be 7-10 days and are essentially cumulative.
(Id. at 1-2.) In addition to these common questions, Plaintiff
also notes that counsel for both actions “have agreed to mirror
discovery in these matters, to forgo duplicative discovery.”
(Id. at 3.) Plaintiff concludes that consolidation will preserve
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judicial resources, prevent administrative confusion, and avoid
conflicting decisions of law.
3.

Defendant opposes [Docket Item 63] Plaintiff’s motion

because “[e]ach case presents individualized issues insofar as
Plaintiffs Henson and Moore were terminated for different
reasons and at different times, and different people will be
testifying regarding the circumstances leading up to their
terminations.” (Def. Opp’n at 2.) Defendant emphasizes that “the
probability for juror confusion would be high if the cases were
consolidated because there would be numerous instances at trial
where a witness or other piece of evidence can only be
considered for purposes of one of the two cases.” (Id. at 2.)
4.

Defendant claims that the terminations occurred at

different times for different reasons. Defendant claims Henson
was terminated in August 2010 for insubordination after refusing
to follow a supervisor’s order to restack a leaning pallet of
expensive food product.1 Defendant asserts that Moore was
terminated in April 2011 for excessive absenteeism, specifically
eight unexcused absences, after he had exhausted his FMLA leave.
Because the circumstances surrounding the terminations are

1

Defendant explained in its Motion for Summary Judgment [Docket
Item 46] that a leaning pallet is a safety hazard because the
boxes can fall onto employees. In addition, a leaning pallet can
fall and crush boxes, which customers will not purchase.
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different, Defendant argues that there are no common evidentiary
questions. In addition, Defendant asserts that, because Henson
and Moore were terminated for different reasons, they are not
similarly situated in all relevant respects, thus precluding
overlap in terms of comparator employees. Finally, Defendant
argues that, even if common factual or legal questions did
exist, individual issues about each termination predominate.
Defendant asserts that consolidation would confuse jurors and
prejudice Defendant.
5.

In Reply [Docket Item 67-1], Plaintiff argues that

both Henson and Moore “are presenting FMLA claims which rely on
evidence of an environment permeated with anti-FMLA sentiment.”
(Def. Reply at 2.) In addition, Plaintiff claims that both cases
will examine whether liquidated damages are appropriate for
Defendant’s FMLA violations.
6.

The Court will now turn to its analysis. Plaintiff

Henson’s motion to consolidate will be denied because individual
questions predominate, and the risk of prejudice and confusion
outweighs any potential benefits of consolidation.
7.

Fed. R. Civ. P. 42(a) states that “[i]f actions before

the court involve a common question of law or fact, the court
may . . . consolidate the actions . . . .” Under Rule 42(a), “a
District Court has broad discretion to determine whether to
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consolidate cases . . . .” In re Mock, 398 F. App'x 716, 718 (3d
Cir. 2010); see also Wright & Miller, Consolidation--Discretion
of Court, 9A Fed. Prac. & Proc. Civ. § 2383 (3d ed.) (“district
court is given broad discretion to decide whether consolidation
under Rule 42(a) would be desirable and the district judge's
decision inevitably is highly contextual”). Common questions of
law or fact do not necessitate consolidation: “The mere
existence of common issues, however, does not require
consolidation. . . . Once a common question has been
established, the decision to consolidate rests in the sound
discretion of the district court.” In re Consol. Parlodel
Litig., 182 F.R.D. 441, 444 (D.N.J. 1998) (internal citations
omitted). In short, the consolidation decision is therefore
discretionary after weighing the particular circumstances.
8.

In deciding whether to consolidate actions under Rule

42(a),
the court must balance the risk of prejudice and
possible confusion against the risk of inconsistent
adjudications of common factual and legal issues, the
burden on the parties and witnesses, the length of
time required to conclude multiple lawsuits as against
a single one, and the relative expense to all
concerned of the single-trial and multiple-trial
alternatives.
A.F.I.K. Holding SPRL v. Fass, 216 F.R.D. 567, 570 (D.N.J. 2003)
(citations omitted). In other words, “a motion under Rule 42(a)
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may be denied . . . if consolidation will . . . lead to
confusion or prejudice . . . .” § 2383 Wright & Miller,
Consolidation—Discretion of Court, 9A Fed. Prac. & Proc. Civ. §
2383 (3d ed.).
9.

Both cases involve FMLA and NJLAD termination claims

against the same employer, but both statutes require the factfinder to examine the circumstances surrounding the individual
plaintiff’s termination.
10.

To establish a prima facie case of retaliation for

taking FMLA leave under 29 U.S.C. § 2615(a)(2), a plaintiff must
show that (1) he took FMLA leave, (2) he suffered an adverse
employment decision, and (3) the adverse decision was causally
related to his leave. Lepore v. Lanvision Sys., Inc., 113 F.
App'x 449, 453 (3d Cir. 2004). Once the prima facie case is
successfully made, the burden of production shifts to the
defendant to articulate a legitimate, non-discriminatory reason
for the plaintiff's termination. Id. at 452-53. If the defendant
meets this burden, the plaintiff must then prove that the
defendant's reason was a pretext for a discriminatory motive.
Id.
11.

To establish a prima facie case for a discriminatory

discharge claim under the NJLAD, the plaintiff must demonstrate:
(1) that he is in a protected class; (2) that he was otherwise
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qualified and performing the essential functions of the job; (3)
that he was terminated; and (4) that the employer thereafter
sought similarly qualified individuals for that job. Victor v.
State, 203 N.J. 383, 409 (2010). If the plaintiff establishes a
prima facie case, then the burden shifts to the employer to
articulate a legitimate, nondiscriminatory reason for the
employer's action. Henry v. New Jersey Dep't of Human Servs.,
204 N.J. 320, 331 (2010). Subsequently, the burden shifts back
to the employee to prove by a preponderance of the evidence that
the reason articulated by the employer was merely a pretext for
discrimination and not the true reason. Id.
12.

These legal standards require a fact-specific

examination of each individual’s termination. Plaintiff argues
that the terminations were discriminatory and retaliatory in
both cases. But there still must be a fact-intensive inquiry
regarding Defendant’s proffered reasons, i.e., insubordination
for Henson and absenteeism for Moore, and the decision-making
processes that led to those terminations. In addition, the NJLAD
claim requires the plaintiff to show that he was performing the
essential functions of the job before he was terminated, which
requires an examination of each plaintiff’s job performance.
Individual questions thus predominate in these actions.

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13.

In addition, only Henson, and not Moore, has a hostile

work environment claim. Evidence relating to Henson’s hostile
work environment claim would be inapplicable in the Moore case.
14.

If these cases were consolidated for trial, the jury

would be presented with substantial evidence that is only
applicable in one case. As a result, “the risk of confusion
lead[s] this Court to deny Plaintiff[’s] motion to consolidate.”
Hailey v. City of Camden, 631 F. Supp. 2d 528, 553 (D.N.J.
2009). “The difficulty of instructing a jury to consider only
some issues in some relevant areas for certain periods of time
outweighs any benefit from combining two similar actions.” Id.
In addition, it could be prejudicial to Defendant for the jury
to encounter so much evidence that is not relevant to the
specific inquiry in each case.2
15.

The Court will exercise its discretion and deny

Plaintiff’s consolidation request. The accompanying Order will
be entered.
August 15, 2013
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

2

The Court makes no determination whether aspects of Moore’s
case might be admissible in Henson’s trial as “other acts” of
the defendant under Rules 404(b) & 403, Fed. R. Evid., as the
issue is not presented here and requires case-by-case
determination and, eventually, limiting instructions to the jury
if such evidence is permitted. Such matters may be addressed in
advance of trial, if necessary.
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