Muhammad v. Giant Food, Inc. , 108 F. App'x 757 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RAQIB A. MUHAMMAD, 
Plaintiff-Appellant,
and
KIMBERLY L.C. MARTIN,
Plaintiff,
v.
GIANT FOOD INCORPORATED; J.
SAINSBURY (USA) HOLDING, a/k/a
The Sainsbury Group; PETE MANOS,
CEO/President, in his individual and
official capacity, Giant Food,
Incorporated; DEBRA LILLY, in her
official capacity, Director of Fair  No. 01-1031
Employment Office, Giant Food,
Incorporated; NICK SACCHETTI, Store
Manager, in his official capacity,
Giant Food, Incorporated; BOB
SCHOENING, Vice President, in his
official capacity, Giant Food,
Incorporated,
Defendants-Appellees,
and
UNITED FOOD & COMMERCIAL FOOD
WORKERS INTERNATIONAL UNION,
AFL-CIO Union Local 400,
Defendant.

2 MUHAMMAD v. GIANT FOOD INC.
DANIEL E. JOHNSON, III, 
Plaintiff-Appellant,
v.
GIANT FOOD INC; PETE MANOS,
CEO/President, in his individual and
official capacity, Giant Food,
Incorporated; DEBRA LILLY, in her
official capacity, Director of Fair  No. 01-1032
Employment Office, Giant Food,
Incorporated; NICK SACCHETTI, Store
Manager, in his official capacity,
Giant Food, Incorporated; BOB
SCHOENING, Vice President, in his
official capacity, Giant Food,
Incorporated,
Defendants-Appellees.

MUHAMMAD v. GIANT FOOD INC. 3
DARNELL HART, on behalf of those 
persons similarly situated,
Plaintiff-Appellant,
v.
GIANT FOOD INCORPORATED; PETE
MANOS, CEO/President, in his
individual and official capacity,
Giant Food, Incorporated; DEBRA
LILLY, in her official capacity,  No. 01-1033
Director of Fair Employment
Office, Giant Food, Incorporated;
NICK SACCHETTI, Store Manager, in
his official capacity, Giant Food,
Incorporated; BOB SCHOENING, Vice
President, in his official capacity,
Giant Food, Incorporated,
Defendants-Appellees.

4 MUHAMMAD v. GIANT FOOD INC.
RONALD A. EVANS, 
Plaintiff-Appellant,
v.
GIANT FOOD INC; PETE MANOS,
CEO/President, in his individual and
official capacity, Giant Food,
Incorporated; DEBRA LILLY, in her
official capacity, Director of Fair  No. 01-1034
Employment Office, Giant Food,
Incorporated; NICK SACCHETTI, Store
Manager, in his official capacity,
Giant Food, Incorporated; BOB
SCHOENING, Vice President, in his
official capacity, Giant Food,
Incorporated,
Defendants-Appellees.

LINDA A. JONES, 
Plaintiff-Appellant,
v.
GIANT FOOD INC; PETE MANOS,
CEO/President, in his individual and
official capacity, Giant Food,
Incorporated; DEBRA LILLY, in her
official capacity, Director of Fair  No. 01-1035
Employment office, Giant Food,
Incorporated; NICK SACCHETTI, Store
Manager, in his official capacity,
Giant Food, Incorporated; BOB
SCHOENING, Vice President, in his
official capacity, Giant food,
Incorporated,
Defendants-Appellees.

MUHAMMAD v. GIANT FOOD INC. 5
MYRA B. JONES, 
Plaintiff-Appellant,
v.
GIANT FOOD INC; PETE MANOS,
CEO/President, in his individual and
official capacity, Giant Food,
Incorporated; DEBRA LILLY, in her
official capacity, Director of Fair  No. 01-1036
Employment Office, Giant Food,
Incorporated; NICK SACCHETTI, Store
Manager, in his official capacity,
Giant Food, Incorporated; BOB
SCHOENING, Vice President, in his
official capacity, Giant Food,
Incorporated,
Defendants-Appellees.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(CA-98-3565-JFM; CA-00-3465-JFM; CA-00-3466-JFM;
CA-00-3467-JFM; CA-00-3468-JFM; CA-00-3469-JFM)
Argued: January 22, 2002
Decided: August 12, 2004
Before WIDENER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Jo Ann P. Myles, Largo, Maryland, for Appellants.
Kumiki San Gibson, WILLIAMS & CONNOLLY, L.L.P., Washing-
6 MUHAMMAD v. GIANT FOOD INC.
ton, D.C., for Appellees. ON BRIEF: Robert P. Watkins, WIL-
LIAMS & CONNOLLY, L.L.P., Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Giant Food, Inc., a retail supermarket chain, operates more than
150 stores located throughout Delaware, Maryland, New Jersey,
Pennsylvania, Virginia, and the District of Columbia. Six Giant
employees, all African-American, filed a putative class action against
Giant and four of its managers, alleging that Giant engaged in a pat-
tern or practice of discrimination. The district court granted summary
judgment in favor of Giant on each of the employee’s individual
claims and declared moot the pending class certification motion. The
employees appeal. For the reasons set forth below, we affirm.
I.
This action was commenced in 1997, and the employees filed an
amended complaint in October 1998. In April 1999, the district court
entered a scheduling order that established discovery and filing time
frames. The scheduling order initially provided that motions for sum-
mary judgment and class certification should be filed by May 12,
2000; that deadline was later extended to June 29, 2000. On June 29,
2000, the defendants moved for summary judgment against the claims
of each of the named employee plaintiffs. The employees filed
responses to the summary judgment motions and argued that, under
the burden-shifting framework established by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), their evi-
dence was sufficient to survive summary judgment. On July 7, 2000,
more than a week after defendants moved for summary judgment and
almost two years after the amended complaint was filed, the employ-
MUHAMMAD v. GIANT FOOD INC. 7
ees filed a class certification motion. As noted above, the district
court granted summary judgment in favor of the defendants as to the
claims of each of the named plaintiffs. The district court then con-
cluded that the class certification motion was moot, given that the
named plaintiffs had no cause of action typical of the alleged class.
The employees appealed, raising certain procedural issues that apply
to all of their claims, as well as challenging the grants of summary
judgment against their individual claims. At this court’s direction, the
employees filed a primary brief addressing issues common to all six
plaintiffs and separate supplemental briefs addressing the merits of
their individual claims of discrimination.
II.
A.
The employees contend that the district court erred by analyzing
their discrimination claims under the McDonnell Douglas framework
rather than the framework governing pattern-or-practice cases set
forth in International Brotherhood of Teamsters v. United States, 431
U.S. 324 (1977). In a related argument, the employees contend that
the district court erred by considering the summary judgment motions
before considering the certification motion.
In McDonnell Douglas, the Supreme Court established the familiar
framework under which most employment discrimination claims are
analyzed: a plaintiff makes a prima facie showing of discrimination
by establishing that (1) he is in a protected class; (2) he applied for
the position in question; (3) he was qualified for the position; and (4)
he was rejected for the position under circumstances giving rise to an
inference of discrimination. See McDonnell Douglas, 411 U.S. at 802.
If the employer rebuts the prima facie case by producing evidence of
a legitimate, non-discriminatory reason for its actions, the plaintiff
must then show that the employer’s proffered reason is a pretext for
discrimination. See id. at 802-04. The ultimate burden of proving dis-
crimination always rests with the plaintiff. See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) ("Although interme-
diate evidentiary burdens shift back and forth under [the McDonnell
Douglas] framework, the ultimate burden of persuading the trier of
fact that the defendant intentionally discriminated against the plaintiff
8 MUHAMMAD v. GIANT FOOD INC.
remains at all times with the plaintiff." (internal quotation marks and
alteration omitted)).
Class actions alleging a pattern or practice of discrimination, how-
ever, are governed by the analytical framework established by the
Supreme Court in Teamsters. Instead of focusing on individual
employment decisions, pattern-or-practice cases focus on "a pattern of
discriminatory decisionmaking." Cooper v. Federal Reserve Bank of
Richmond, 467 U.S. 867, 876 (1984) (internal quotation marks omit-
ted). Pattern-or-practice cases proceed in two phases. In the first
phase (sometimes called the liability phase), the plaintiffs must estab-
lish that "discrimination [is] the company’s standard operating
procedure—the regular rather than the unusual practice." Teamsters,
431 U.S. at 336. "[D]emonstrating the existence of a discriminatory
pattern or practice establishe[s] a presumption that the individual
class members ha[ve] been discriminated against." Cooper, 467 U.S.
at 875; see also Lowery v. Circuit City Stores, Inc., 158 F.3d 742,
759-60 (4th Cir. 1998), vacated and remanded in part on other
grounds, 527 U.S. 1031 (1999). "[A] finding of a pattern or practice
of discrimination itself justifies an award of prospective relief to the
class. . . ." Cooper, 467 U.S. at 876. However, if the class plaintiffs
seek individual relief, the case then moves into the second or remedial
phase. See Teamsters, 431 U.S. at 361. The burden in the remedial
phase is on the employer, who must "prove that the employee was
denied an employment opportunity for lawful reasons." Lowery, 158
F.3d at 760; see Teamsters, 431 U.S. at 362.
Thus, one of the primary effects of establishing a pattern or prac-
tice of discrimination
is to substantially lessen each class member’s evidentiary
burden relative to that which would be required if the
employee were proceeding separately with an individual
disparate treatment claim under the McDonnell Douglas
framework. Rather than having to make out a prima facie
case of discrimination and prove that the employer’s
asserted business justification is merely a pretext for dis-
crimination, a class member at the remedial stage of a
pattern-or-practice claim need only show that he or she suf-
fered an adverse employment decision and therefore was a
MUHAMMAD v. GIANT FOOD INC. 9
potential victim of the proved class-wide discrimination.
The burden of persuasion then shifts to the employer to
demonstrate that the individual was subjected to the adverse
employment decision for lawful reasons.
Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 159-60 (2d
Cir. 2001) (citations, internal quotation marks and alterations omit-
ted).
In this case, however, the district court granted summary judgment
against each of the individual employee’s claims before considering
the certification motion. The court analyzed each employee’s claims
under the McDonnell Douglas framework, without mentioning the
possibility that the employees might be entitled to the presumption of
discrimination that can arise in a pattern-or-practice case. On appeal,
the employees contend that they filed this action as a pattern-or-
practice class action, that they alleged in the complaint that Giant
engaged in a pattern and practice of discrimination, and that they were
therefore entitled to the Teamsters presumption of discrimination
when the district court considered Giant’s summary judgment
motions. The employees argue that if the district court had considered
the certification request first (which they contend the court was
required to do), the district court, cognizant of the Teamsters pre-
sumption, would not have granted summary judgment against their
individual claims.
At the time of the district court’s ruling, Rule 23(c) of the Federal
Rules of Civil Procedure required a district court to make a certifica-
tion ruling "[a]s soon as practicable after the commencement" of a
putative class action. See Fed. R. Civ. P. 23(c)(1) (2000).1 This circuit
has relied on that language when noting that the question of whether
a class action will be certified must be resolved before a decision on
the merits of the case is made. See Nance v. Union Carbide Corp.,
540 F.2d 718, 723 n.9 (4th Cir. 1976) ("The language of Rule 23(c)
makes it quite clear that the determination of class status is to be
made before the decision on the merits." (internal quotation marks
1
The rule was amended effective December 1, 2003, to provide that the
district court must make the certification decision "at an early practicable
time." Fed. R. Civ. P. 23(c)(1)(A) (2004).
10 MUHAMMAD v. GIANT FOOD INC.
omitted)), vacated in part on other grounds, 431 U.S. 952 (1977).
Other courts, however, have concluded that, under some circum-
stances, a district court is free to consider a summary judgment
motion before deciding whether to certify a class action lawsuit. See,
e.g., Cowen v. Bank United of Texas, FSB, 70 F.3d 937, 941-42 (7th
Cir. 1995); Wright v. Schock, 742 F.2d 541, 543-44 (9th Cir. 1984).
But one court has questioned whether it is proper in a putative
pattern-or-practice class action to rule on summary judgment motions
before resolving the certification question. See Thiessen v. General
Elec. Capital Corp., 267 F.3d 1095, 1109 (10th Cir. 2001) ("Until the
first stage [of a pattern-or-practice class action] is resolved, we ques-
tion whether it is proper for a court to consider summary judgment
motions regarding second stage issues (i.e., whether the individual
plaintiffs are entitled to relief). Even assuming, arguendo, such
motions can properly be considered prior to resolution of the first
stage, it is clear they would not be analyzed under the typical
McDonnell-Douglas framework.").
As Giant notes, the statement in this court’s opinion in Nance that
the prior version of Rule 23 required consideration of a certification
motion before a ruling on the merits is probably best described as dic-
tum.2 Nonetheless, for purposes of this opinion, we will assume that,
under Nance, district courts should rule on class certification requests
before ruling on a summary judgment motion or otherwise ruling on
the merits of the claims. The question, then, is whether the district
2
In Nance, an individual brought an employment discrimination case
against her employer, and questions arose as to whether the plaintiff
intended the case to proceed as a class action. The plaintiff stipulated that
she did not intend to amend her complaint to allege a class action, but
that she believed any "benefits she may obtain in this action should inure
to the benefit of other similar[ly] situated females" working for the
employer. Nance, 540 F.2d at 722. Ruling in favor of the plaintiff, the
district court granted individual and class relief. The employer appealed,
arguing, among other things, that the district court erred by granting class
relief in a case that was never certified as a class action. This court
agreed. See id. at 725. The court’s mention in a footnote of the require-
ment that the certification issue be resolved before ruling on the merits
had no bearing on the issue before the Nance court but merely explained
the procedure of a different case used to support the court’s decision that
the plaintiff had not brought a class action.
MUHAMMAD v. GIANT FOOD INC. 11
court’s failure in this case to consider the certification issue first is an
error that warrants correction on appeal. Under the particular circum-
stances of this case, we answer that question in the negative.
As noted above, this case was pending as a putative class-action for
more than two years before Giant’s motions for summary judgment
were filed, yet the employees during this time did not seek certifica-
tion. The employees finally filed the certification motion a week after
Giant’s summary judgment motions were filed, but even then the
employees did not ask the district court to hold the summary judg-
ment motions in abeyance pending a ruling on the certification
request. The employees, therefore, have forfeited their right to raise
the issue on appeal. See Brickwood Contractors, Inc. v. Datanet
Eng’g, Inc., 369 F.3d 385, 390 (4th Cir. 2004) (en banc) (noting the
"general rule that we will not consider issues raised for the first time
on appeal").3
We conclude that the employees have likewise forfeited their right
to argue on appeal that the district court erred by analyzing their indi-
vidual claims under the McDonnell Douglas framework. In its sum-
mary judgment motions, Giant analyzed each of the employee’s
claims under McDonnell Douglas. The employees in their responses
did not argue that McDonnell Douglas was not applicable. To the
contrary, the employees themselves relied on the McDonnell Douglas
framework when arguing that summary judgment should not be
granted. If the conduct of the employees in this regard does not
amount to invited error,4 we have no doubt that it amounts to a forfei-
3
In light of this conclusion, we need not consider the employees’ claim
that the district court erred by not holding an evidentiary hearing on their
certification motion. We note, however, that the employees in their
motion for class certification specifically stated that an evidentiary hear-
ing was not necessary.
4
See, e.g., United States v. Jackson, 124 F.3d 607, 617 (4th Cir. 1997)
(explaining that "[t]he invited error doctrine recognizes that a court can-
not be asked by counsel to take a step in a case and later be convicted
of error, because it has complied with such request" (internal quotation
marks omitted)); AG Sys., Inc. v. United Decorative Plastics Corp., 55
F.3d 970, 972 (4th Cir. 1995) ("We have never held in this court that an
appeal may lie from an invited error. . . .").
12 MUHAMMAD v. GIANT FOOD INC.
ture of the right to raise the issue on appeal. See Brickwood, 369 F.3d
at 390.
We recognize that some (but not all) of the individual responses to
Giant’s summary judgment motions mentioned the pattern-or-practice
allegations in the complaint and asserted that "[b]ased on th[ese] alle-
gations alone, the burden shifted to Defendant Giant to show that it
‘ceased to utilize’ its illegal discriminatory systems prior to when the
plaintiffs filed their respective employment discrimination charges."
J.A. 4613. In our view, this passing reference (which does not even
include a citation to Teamsters) is insufficient to change our conclu-
sion that the employees failed to argue before the district court that
the McDonnell Douglas framework should not be applied to their
claims.
Preliminarily, we note that the various assumptions reflected in this
statement are wrong as a matter of law. Simply alleging the existence
of a pattern or practice of discrimination does not guarantee class cer-
tification. See Lowery, 158 F.3d at 759 (explaining that "the Supreme
Court has rejected the proposition that merely alleging a pattern or
practice of discrimination entitles plaintiffs to class certification").
Nor does the mere allegation of a pattern or practice of discrimination
automatically give rise to the Teamsters presumption—the presump-
tion arises only when the evidence establishes that a pattern or prac-
tice of discrimination exists. See Cooper, 467 U.S. at 875("[D]emonstrating the existence of a discriminatory pattern or prac-
tice establishe[s] a presumption that the individual class members
ha[ve] been discriminated against." (emphasis added)). Finally, a
party opposing summary judgment may not simply rest on the allega-
tions of his complaint, but must instead come forward with specific
evidence showing the existence of a genuine issue of fact. See, e.g.,
Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). Although the
employees did submit pattern-or-practice evidence along with their
class certification motion, none of the employees’ responses to the
summary judgment motion specifically referred to any of the pattern-
or-practice evidence or made any argument as to what that evidence
might have established. Cf., e.g., Ritchie v. Glidden Co., 242 F.3d
713, 723 (7th Cir. 2001) (explaining that "a court is not required to
scour the record in search of evidence to defeat a motion for summary
judgment" (internal quotation marks omitted)).
MUHAMMAD v. GIANT FOOD INC. 13
Under these circumstances, we do not believe that the passing men-
tion of a presumption in some of the employees’ summary judgment
responses sufficiently presented to the district court the issues the
employees now press on appeal. Thus, we conclude that the employ-
ees forfeited the issues regarding the timing of the summary judgment
ruling and the application of McDonnell Douglas by failing to raise
those issues below. The employees do not argue that the circum-
stances of this case warrant correction of the district court’s claimed
errors under plain error review, and our own review of the record
reveals no reason to depart from our general rule of refusing to correct
forfeited errors. See Brickwood, 369 F.3d at 396-97 (explaining the
circumstances under which an error raised for the first time on appeal
will be recognized and corrected).
B.
We now consider whether, in light of our conclusions that the dis-
trict court committed no reversible error by applying the McDonnell
Douglas framework to the employees’ individual discrimination
claims or by ruling on the summary judgment motions before consid-
ering the class certification motion, the district court erred by granting
summary judgment against each of the named employees’ individual
claims of discrimination. We answer that question in the negative.
As noted above, if a plaintiff proceeding under McDonnell Douglas
establishes a prima facie case of discrimination, the employer must
then articulate a legitimate, nondiscriminatory reason for the adverse
employment action at issue. At that point, the plaintiff may then pre-
sent evidence showing that the employer’s stated reason for the action
is mere pretext and that unlawful discrimination was the real reason
for the employer’s action. See, e.g., Hill v. Lockheed Martin Logistics
Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004) (en banc). When
courts are evaluating the legitimacy of the employer’s stated reason
for the employment action, the question is not whether the employer’s
stated reason was a good business decision, but whether the stated
reason was the real reason. See Hawkins v. PepsiCo, Inc., 203 F.3d
274, 278 (4th Cir. 2000) ("[W]hen an employer gives a legitimate,
non-discriminatory reason for discharging the plaintiff, it is not our
province to decide whether the reason was wise, fair, or even correct,
ultimately, so long as it truly was the reason for the plaintiff’s termi-
14 MUHAMMAD v. GIANT FOOD INC.
nation." (internal quotation marks omitted)). The granting of sum-
mary judgment, of course, is proper only when there is no genuine
issue of material fact and the moving party is entitled to judgment as
a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). While we must view the evidence in the
light most favorable to the non-moving party and give the non-
moving party the benefit of all reasonable inferences that can be
drawn from the evidence, "[c]onclusory or speculative allegations do
not suffice." Thompson v. Potomac Elec. Power Co., 312 F.3d 645,
649 (4th Cir. 2002); see also Causey v. Balog, 162 F.3d 795, 802 (4th
Cir. 1998) (affirming grant of summary judgment in part because the
plaintiff’s "conclusory statements, without specific evidentiary sup-
port," were insufficient to create a genuine issue of fact); Williams v.
Cerberonics, Inc., 871 F.2d 452, 456 (4th Cir. 1989) (explaining that
"a plaintiff’s own assertions of discrimination in and of themselves
are insufficient to counter substantial evidence of legitimate nondis-
criminatory reasons for an adverse employment action").
After carefully considering the arguments of the parties, reviewing
the evidence in the record, and applying the general principles out-
lined above, we simply cannot conclude that the district court erred
by granting summary judgment against the employees’ individual
claims of discrimination. Accordingly, we affirm the district court’s
rejection of the employees’ individual claims of discrimination.5
5
We note, however, that this conclusion does not, as the employees
suggest, "disenfranchise[ ] tens of thousands of putative class members."
Primary Brief of Appellant at 7. While the rejection of the named
employees’ individual claims is binding as to those employees, it does
not preclude later efforts to certify a class action against Giant or bar any
individual claims that might be asserted in such an action. See, e.g.,
Cowen, 70 F.3d at 941 (explaining that if summary judgment is granted
against the claims of the named plaintiffs and the class certification
motion is thereafter denied, "the defendant loses the preclusive effect on
subsequent suits against him of class certification"); Wright, 742 F.2d at
544 (explaining that because summary judgment was granted against
named plaintiffs before case was certified as a class action, the "defen-
dants have prevailed only against the named plaintiffs. The judgment
will not be res judicata as to other individual plaintiffs or other members
of any class that may be certified.").
MUHAMMAD v. GIANT FOOD INC. 15
III.
The employees also contend that the district court erred by failing
to require Giant to comply with certain of their discovery requests and
that the court’s error forced them "to present a case at the motion for
Summary Judgment with an incomplete factual record." Primary Brief
of Appellants at 28. This argument is without merit.
As part of their effort to prove a pattern of discrimination, the
employees hired an expert to conduct a statistical analysis of Giant’s
employment practices. Accordingly, the employees sought in discov-
ery various computer records of Giant’s personnel information and
actions. The employees claim, however, that Giant stalled and then
finally produced the information without proper decoding guides,
which rendered the information indecipherable. The employees con-
tend that Giant’s foot-dragging required them to request multiple
extensions of time for submission of their expert report, caused them
to expend large sums of money needlessly, and resulted in "an inaccu-
rate expert report limited by a lack of complete information." Primary
Brief of Appellants at 31. The employees claim that "[t]hese repeated
incidents of bad faith on Giant’s part are precisely the type of behav-
ior for which the court has the remedy of sanctions," yet the district
court "declined to impose any form of sanctions nor even compel
proper remedy in discovery." Primary Brief of Appellants at 32.
This argument, however, ignores several relevant facts. In February
2000, after the statistical report was prepared and submitted to the
court, counsel for the employees notified Giant that the report made
it clear that computer tapes produced by Giant did not include all of
the required information, and counsel requested that Giant produce
the additional information. Giant rechecked the tapes it had submit-
ted, discovered that certain information had been inadvertently omit-
ted, and then promptly provided the information to the employees.
Thereafter, the employees sought additional time to supplement their
expert report and requested an order requiring Giant to pay for all of
the expert costs and fees.
At the hearing on the employees’ motion, the district court granted
additional time for the employees to supplement the report. However,
the court refused to require Giant to bear the entire cost of the produc-
16 MUHAMMAD v. GIANT FOOD INC.
tion of the report. The court explained its preliminary conclusion that
Giant could be held responsible for the additional cost of supplement-
ing or re-working the report, but not for the entire cost of the report.
The court therefore denied the employees’ motion for sanctions, with-
out prejudice to their right to renew the motion after the report was
supplemented. The employees submitted their supplemental report a
few weeks later, but never moved for the payment of any fees or costs
associated with the supplemental response. Because Giant voluntarily
produced the missing computer information and the employees never
sought the costs associated with the preparation of the supplemental
report, the employees cannot now complain that the district court
erred by not imposing sanctions that were never requested.
IV.
Finally, the employees contend that the district court erred by
refusing to consolidate this action with another putative class action
then pending against Giant. Again we disagree.
This action was originally brought in 1997 in the District of
Columbia. At Giant’s request, the case was transferred to the District
of Maryland, where Carson v. Giant Foods, Inc., No. JFM-96-2882,
another class action brought by the employees’ attorney, was pending.
As part of its argument in favor of transfer, Giant argued that the case
should be transferred so it could be consolidated with Carson. After
transfer, however, the district court declined to consolidate this case
with Carson. On appeal, the employees contend that they were preju-
diced by the district court’s failure to consolidate this case with Car-
son, claiming that they were forced to bear duplicative costs for
discovery, which they contend affected their ability to "present a
cohesive, clear, and accurate evidentiary record within the court’s
strict scheduling order." Primary Brief of Appellants at 35.
We first note that the employees opposed Giant’s motion to trans-
fer the case to Maryland, arguing in part that a consolidation with
Carson "would lead to undue delay in the administration of justice,"
J.A. 84-BB, a position that seems directly contrary to the position
they now assert on appeal. Moreover, there is no indication in the
record that the employees in this case actually requested consolida-
tion. Nonetheless, even assuming that the consolidation issue is prop-
MUHAMMAD v. GIANT FOOD INC. 17
6
erly before us, we find no error. By the time this case was transferred
to Maryland, Carson had been pending for more than two years, the
Carson defendants had been granted permission to take an interlocu-
tory appeal of the district court’s denial of their motion to dismiss,
and this Court had granted a stay of all discovery in Carson. Given
that this case and the Carson case were proceeding on such different
procedural tracks, we cannot say that the district court abused its dis-
cretion by refusing to consolidate the actions. See A/S J. Ludwig
Mowinckles Rederi v. Tidewater Constr. Corp., 559 F.2d 928, 933
(4th Cir. 1977) ("District courts have broad discretion . . . to consoli-
date causes pending in the same district.").
V.
Accordingly, for the foregoing reasons, the decision of the district
court is hereby affirmed.
AFFIRMED
6
In Adams v. Giant Foods, Inc., No. JFM-99-1244 (D. Md.), another
putative class action filed by the attorney representing the employees in
this case, a motion was filed seeking the consolidation of this case, Car-
son, and Adams, but there is no record of a motion being filed in this
case. The employees’ primary brief, however, includes a few cryptic
statements about the district court’s failure to "maintain a correct and
accurate docket sheet of this case," Primary Brief of Employees at 8, and
the employees suggest that the question of consolidation of this case with
Carson was raised during a conference not reflected in the record.