– and is familiar with the subject matter. The Complainants argue that the hearings in the Sharp and Fredrickson Matters will repeat and be bolstered by the testimony in the Davis Matter. The Complainants suggest that the Fredrickson hearing could be held in Washington, DC, to avoid unnecessary costs of travel and duplication of testimony. The Complainants concluded that the three claims should be consolidated under 29 C.F.R. § 18.11 in the interest of judicial economy.
[Page 3]
The Respondent opposed the Complainants' Motion for Consolidation in a Response submitted on March 6, 2007. The Respondent first argued that it would be improper to allow consolidation of the Davis Matter with the Sharp and Fredrickson Matters because the Davis Matter is not a hearing "to be held" in accordance with 29 C.F.R. § 18.11. The Respondent noted that the Davis Matter was tried in April and June of 2006 and the parties are ready to file post-hearing briefs. The Respondent contends that halting the process in the Davis Matter to consolidate it with two cases that have not yet been heard would deprive the Respondent of its right to prompt adjudication under the Act. Additionally, the Respondent argues that even if Complainant Davis succeeds in reopening the record, the hearing has concluded and any reopening would be for a very limited purpose. As a result, the Respondent argues that holding up the Davis Matter for the purposes of consolidation would only accomplish delay in a matter that has otherwise been concluded and awaits adjudication.
Secondly, the Respondent argues that the Sharp and Fredrickson matters should not be consolidated because they do not arise out of common facts and do not have the same or substantially similar evidence. Complainant Sharp claims that she was fired from the Respondent's Aspen Hill store in Maryland because she complained about the Respondent's RTV practices, received a subpoena to testify in the Davis Matter, and because she was discriminated against on the basis of race, gender, and age. The Respondent will assert that Complainant Sharp was fired because she violated the Respondent's shoplifter apprehension policy. On the other hand, Complainant Fredrickson alleges that he was discharged from the Respondent's Pell City, Alabama, store because he complained to a co-worker about the type of mark-down he had to record for an item that was not damaged. The Respondent will assert that Complainant Fredrickson was discharged for punching a vendor in the groin. The Respondent explained that mark-downs concern the marking down of the sales price of an item that is damaged in the store while RTV practices involve returning defective products to the vendor. As a result of this distinction between the protected activities that are at issue in each of the claims and the differing allegations, the Respondent argues that the evidence in the Sharp and Fredrickson Matters is not the "same or substantially similar," as require for consolidation under 29 C.F.R. § 18.11.
And, finally, the Respondent argued that the three claims should not be consolidated because moving the Fredrickson case from Alabama to Washington, DC, would require the Respondent to incur the expense of bringing its witnesses from Alabama and would cause significant inconvenience to the witnesses.
After reviewing the Complainants' motion and the Respondent's response, I conclude that there is no compelling reason to consolidate the Davis, Sharp, and Fredrickson Matters. The hearing in the Davis Matter was completed several months ago and is at a very different stage of litigation than the Sharp and Fredrickson Matters. Additionally, the Sharp and Fredrickson Matters involve different alleged acts taking place in different stores in different regions of the country. As a result, the Sharp and Fredrickson Matters do not involve the "same or substantially similar evidence" and the evidence in one hearing mah not be relevant or material to the other. As a result, the Complainants' request to consolidate the hearings must be denied.
[Page 4]
In light of the foregoing, it is hereby ORDERED that the Complainants' Motion for Consolidation is DENIED.
John M. Vittone
Chief Administrative Law Judge
[ENDNOTES]
1 Twenty nine C.F.R. §18.11 states
When two or more hearings are to be held, and the same or substantially similar evidence is relevant and material to the matters at issue at each such hearing, the Chief Administrative Law Judge or the administrative law judge assigned may, upon motion by any party or on his or her own motion, order that a consolidated hearing be conducted. Where consolidated hearings are held, a single record of the proceedings may be made and the evidence introduced in one matter may be considered as introduced in the others, and a separate or joint decision shall be made, at the discretion of the administrative law judge as appropriate.
2 Complainant Davis intends to file a motion to reopen testimony in his case as a result of new evidence that was not revealed during the course of discovery.
