IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

ROBERT HENSON,

Plaintiff,

v.

U.S. FOODSERVICE, INC., et 

al.,

Defendants.

Civil Action 

No. 11-1809 (JBS/KMW)

 

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 
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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 s/ Jerome B. Simandle

Date 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.