# Roberson v. The Kansas City Southern Railway Co.

> District Court, W.D. Missouri · July 21, 2022

URL: https://www.frixlaw.com/law-library/cases/10242497

## Case

- **Court:** District Court, W.D. Missouri
- **Decided:** July 21, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10242497

## How later opinions describe it (automated extraction)

- holding because the FMLA does not authorize recovery for emotional or non-pecuniary claims, “emotional damage” does not establish an irreparable harm
- finding little difficulty in concluding the employer’s removal of absenteeism points is an employment benefit

## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RODERICK ROBERSON, MICHAEL )
HUDSON, DYLON WHITE, CALEB )
SCHMITT, JUSTIN BERBERICH, CHRIS )
ULRICH, RON COLLINS, )
) Case No. 4:22-cv-00358-RK
Plaintiffs, )
)
v. )
)
THE KANSAS CITY SOUTHERN )
RAILWAY CO., )
)
Defendant. )
ORDER
This class-action lawsuit seeks injunctive and monetary relief against the Kansas City
Southern Railway Co. under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601
et seq. Now before the Court is Plaintiffs’ Motion for Temporary Restraining Order. (Doc. 3.)
The motion is fully briefed (Docs. 4, 31, 37), and the Court heard oral argument on the motion on
July 11, 2022. After careful review and consideration of the Motion for Temporary Restraining
Order, all briefing and arguments of counsel, and the Complaint, record, and applicable law, the
Motion for Temporary Restraining Order is DENIED.
I. Background
Plaintiffs are current or former employees of the Kansas City Southern Railway Co.
(“KCS”), a Class I railroad. (Doc. 1 at ¶¶ 25-31, 32.) As a large freight rail operator, KCS operates
twenty-four hours a day, 365 days a year. Plaintiffs are locomotive conductors and engineers and
have, on average, worked for KCS for fifteen years. (Docs. 5 at ¶ 2; 6 at ¶ 2; 7 at ¶ 2; 8 at ¶ 2; 9
at ¶ 2; 10 at ¶ 2; 11 at ¶ 2; 12 at ¶ 2.)
To staff the railroad with its 24/7 needs, KCS locomotive conductors and engineers (like
Plaintiffs) perform work on an on-call basis and may be called to work at any time day or night.
To keep track of employees who are available to work, KCS uses a dual-classification system
where its locomotive engineers and conductors are either designated as “marked up” (meaning the
employee is available for on-call work as needed) or “marked off” (meaning the employee is on
leave and is unavailable to be called for work). Employees who are marked up are placed on a
rotating on-call list. (Doc. 1 at ¶ 38.) As needed, KCS calls the employee residing at the top of
the on-call list to report to work. (Id.) Employees have two hours to report to work once they are
called. (Id.) Once the work is complete, the employee is added to the bottom of the on-call list
and continues to move up the list until called into work once again. (Id.) In contrast, employees
who “mark off” to take leave are removed from the on-call list.1 To mark off, an employee calls
a KCS crew management agent and tells the agent how long the employee needs to be marked off
and the reason why. Employees mark off to take vacation days, sick and personal leave days,2 as
well as to take FMLA leave. When an employee marks up after having marked off to take leave
(including FMLA leave) the employee is placed at the bottom of the on-call list. (Docs. 1 at 10,
¶ 19 & 15, ¶ 42; 12 at 3, ¶ 5.)3 Generally, then, employees who are marked up are placed on the
on-call list and move up the list until called in to work. Employees who are marked off do not
reside on the on-call list and are placed at the bottom of the on-call list when they once again mark
up.
When taking FMLA leave, Plaintiffs attest that KCS generally requires employees do so
in 24-hour increments. Also according to Plaintiffs, though, KCS does allow employees to mark
up before any period of FMLA leave for which an employee initially marks off for is over, even if
it is ultimately up to KCS whether it will allow an employee to do so. (Docs. 9 at 3, ¶ 5; 10 at 3,
¶ 6; 12 at 3, ¶ 5.) Records of FMLA leave taken by various Plaintiffs as attached to their affidavits,
however, show “mark offs” for FMLA leave in increments other than 24 hours and recorded in

1 The only exception is for employees who are subject to a federally mandated rest period. These
employees remain “marked up” and continue to reside on and move up the on-call list, although they will
not be called in to work until the mandated rest period is over. (Doc. 1 at ¶ 44.)
2 KCS does not provide a set number of sick or personal days for employees, although “excessive”
leave may lead to discipline. (Docs. 5 at ¶ 5; 6 at ¶ 5; 7 at ¶ 5; 8 at ¶ 5; 9 at ¶ 5; 10 at ¶ 6; 11 at ¶ 5; 12 at
¶ 5); (see also Doc. 31-1 at ¶ 16 (noting KCS’s attendance policy “reserves the right to investigate . . . any
employee who appear[s] to be abusing their mark-off privileges”).
3 KCS contends that whether an employee who marks up after having been marked off is placed at
the bottom of the on-call list depends on the specific collective bargaining agreement that applies. KCS
agrees that under at least some collective bargaining agreements, employees who mark up after having been
marked off (including to take FMLA leave) are placed at the bottom of the on-call list. (Doc. 31-1 at 5,
¶ 14.) Under other collective bargaining agreements, KCS maintains, employees who do not miss their turn
by marking off to take FMLA leave retain their spot on the on-call list and after they mark up “will get
called to work at the same time as they would have had they not taken FMLA leave.” (Id. at 5, ¶ 14.) For
purposes of deciding Plaintiffs’ motion for temporary restraining order, Plaintiffs attest that upon returning
from FMLA leave they are placed at the bottom of the on-call list. KCS does not specifically contend
otherwise.
minute-increments.4 Additionally, KCS submitted an affidavit by a supervisor of KCS’s Crew
Resource Management attesting that KCS does not require a minimum period of time for
employees to take FMLA leave, that employees may tell a crew resources agent to mark them off
to take FMLA leave for any period of time, and that employees can “mark up whenever they are
ready to work.” (Doc. 31-1 at 3-4, ¶ 10.)
Prior to September 2021, KCS did not track the amount FMLA leave taken by its
employees. (Doc. 31-11 at 1, ¶ 2.) Instead, KCS tracked only whether employees’ mark-offs for
FMLA leave “were consistent with the frequency and duration estimated by their healthcare
provider at the time they applied for FMLA leave.” (Doc. 31-11 at 1, ¶ 2.) Around September
2021, however, KCS adopted a methodology to calculate its employees’ FMLA leave entitlement
and to track its employees’ FMLA leave usage. (Id. at 2, ¶ 3.)
The FMLA entitles eligible employees5 to “12 workweeks” of unpaid FMLA leave.
§ 2612(a)(1); see 29 C.F.R. § 825.200(a). An FMLA workweek is based on “[t]he actual
workweek” of the employee or, in other words, “the specific hours the employee would have
worked but for the use of leave.” § 825.200(b)(1). When employees (like Plaintiffs) do not work
a set schedule, the federal FMLA regulations explain that the FMLA leave entitlement for these
employees is based on a “a weekly average of the hours scheduled over the 12 months prior to the
beginning of the leave period (including any hours for which the employee took leave of any
type).” § 825.205(b)(3).
To calculate employees’ FMLA leave entitlement (i.e., the full amount of FMLA leave to
which an employee is entitled), KCS relies on a 12-month rolling system. Specifically, KCS first
determines the average number of hours the employee worked per week in the 12-month period
preceding an employee’s request for FMLA leave. (Doc. 31-11 at 2, ¶ 3.) KCS then multiplies
this weekly work-hour-average by 12 (representing the 12 workweeks of FMLA leave to which

4 Exhibits attached to affidavits submitted in support of Plaintiffs’ motion for temporary restraining
order show employees taking FMLA leave for both 24-hour increments as well as varying increments, for
example: 16 hours and 7 minutes, 25 hours and 48 minutes, 11 hours and 29 minutes, 13 hours and 1
minute, 15 hours and 45 minutes (Doc. 6-4); 23 hours and 32 minutes, 71 hours and 10 minutes, 19 hours
and 16 minutes (Doc. 8-3); 34 hours and 14 minutes, 13 hours and 25 minutes, 10 hours and 5 minutes, 12
hours and 29 minutes, 18 hours and 58 minutes (Doc. 9-1); 13 hours and 18 minutes, 38 hours and 2 minutes
(Doc. 10-9)).
5 There does not appear to be any dispute that Plaintiffs are (or were) eligible for leave under the
FMLA. See also 29 U.S.C. § 2611(2)(A) & (B)(ii) (defining eligible employees under the FMLA).
employees are entitled under federal law). (Id.) KCS’s FMLA leave entitlement methodology can
be expressed as follows:

FMLA leave entitlement = [employee’s average weekly work hours in prior 12 months] x 12

To calculate an employee’s FMLA leave availability (i.e., the amount of FMLA leave the
employee has available to use, if any), KCS deducts from an employee’s FMLA leave entitlement
the total hours for which an employee “marks off” to take FMLA leave. (Doc. 31-11 at 2, ¶ 3.)
KCS’s FMLA leave availability methodology can be expressed as follows:

FMLA leave availability = [FMLA leave entitlement] – [hours marked off for FMLA leave]

Starting in late 2021, Plaintiffs, who had each taken FMLA leave during the applicable 12-
month rolling FMLA period, received notice from KCS that they had exhausted their FMLA leave
entitlement. (Docs. 5 at ¶¶ 7-8; 6 at ¶¶ 7-8; 7 at ¶¶ 7-8; 8 at ¶¶ 7-8; 9 at ¶¶ 7-8; 10 at ¶¶ 8-9; 11 at
¶¶ 7-8.) Plaintiffs were told they had exhausted their FMLA leave entitlement despite not having
taken more FMLA leave than they had in the past. (Docs. 6 at ¶ 8; 8 at ¶ 8; 9 at ¶ 8; 10 at ¶ 9; 11
at ¶ 8.) Because KCS has determined they have exhausted their FMLA leave entitlement, Plaintiffs
have had to rely on sick and personal leave or have even had to go to work without taking any
leave when they otherwise would have taken FMLA leave. (Docs. 5 at ¶10; 6 at ¶ 10; 7 at ¶ 10; 8
at ¶ 10; 9 at ¶ 10; 10 at ¶ 12; 11 at ¶ 19.) As a result, some Plaintiffs have been terminated following
an investigation for “excessive layoffs” after taking sick or personal leave in place of FMLA leave
(Docs. 5 at 3, ¶ 10; 7 at 4, ¶ 10); others have been investigated (but not terminated) or told they
were close to being investigated for excessive leave usage (Docs. 6 at 4, ¶ 10; 8 at 4, ¶ 10); and
still other Plaintiffs are fearful and anxious about having to take sick or personal days in place of
FMLA leave in light of KCS’s excessive-use leave policy (Doc. 9 at 4, ¶ 10; 10 at 5, ¶ 12; 11 at 3,
¶ 9).
In this class action lawsuit, Plaintiffs assert two claims against Defendant KCS under the
FMLA. First, in Count One, Plaintiffs allege KCS’s FMLA leave entitlement and FMLA leave
availability methodologies are unlawful. Specifically, Plaintiffs allege KCS’s FMLA leave
entitlement methodology violates federal law because KCS undercounts the hours employees have
actually worked and fails to account for any leave an employee took in the relevant 12-month look
back period. Additionally, Plaintiffs allege KCS’s FMLA leave availability methodology violates
federal law because KCS forces employees to mark off for FMLA leave in increments longer than
one hour and improperly counts every hour the employee is marked off as an hour of FMLA leave.
Second, in Count Two, Plaintiffs allege KCS unlawfully discriminates against employees who take
FMLA leave by (1) requiring employees to take FMLA leave in increments larger than one hour,
and (2) placing employees who return from FMLA leave at the bottom of the on-call list.
In addition to class certification, Plaintiffs seek monetary and injunctive or declaratory
relief under the FMLA, including:
(1) an order expunging discipline and disciplinary points relating to the use of FMLA leave
or other leave that should have been protected FMLA leave; reinstating those Plaintiffs
or class members who were terminated relating to FMLA leave or other leave that
should have been protected FMLA leave, such that Plaintiffs and class members remain
eligible for FMLA leave upon reinstatement; and promoting those Plaintiffs and class
members who were not promoted as a result of the unlawful FMLA practices;
(2) monetary damages including awards of back pay; wages, salary, employment benefits
and compensation denied or lost; actual monetary losses; interest; and liquidated
damages;
(3) an award for costs, disbursements, interest, tax relief, and attorney’s fees;
(4) an order enjoining KCS from miscounting FMLA leave; interfering with, restraining,
or discriminating against employees who use FMLA leave; or denying the use or
attempted use of FMLA leave; and
(5) an order declaring KCS’s conduct to be in violation of the FMLA.
(Id. at 44-45.)
Plaintiffs’ seek temporary injunctive relief that enjoins KCS from continuing to violate the
FMLA and from terminating, disciplining, investigating, or taking adverse action against Plaintiffs
and class members to the extent KCS’s FMLA leave policy is unlawful. Specifically, Plaintiffs
seek a temporary restraining order that:
(1) requires KCS to calculate employees’ FMLA leave entitlement by the following
methodology:

FMLA leave = [average hours each employee worked per week during weeks when the
employee was employed for the entire week and did not take any leave] x 12

(2) requires KCS to allow employees to take FMLA leave in increments of one hour or
less;
(3) requires KCS to calculate employees’ FMLA leave availability by deducting from
employees’ FMLA leave entitlement the difference in hours between (a) the amount of
time the employee actually worked in the workweek in which the employee marked off
for FMLA leave and (b) the average amount of time the employee works in a standard
workweek, and prorating the difference if the employee took multiple forms of leave;
(4) requires KCS to return employees who mark up after having been marked off for FMLA
leave to the same position in the on-call list as they held when they initially marked off
for FMLA leave; and
(5) “restor[e] employees affected by KCS’s unlawful conduct to their prior positions,”
including those that were disciplined, suspended, or terminated because they tried to
take leave that should have been protected under the FMLA. (Doc. 4 at 55-60.)
II. Legal Standard
“Temporary injunctive relief functions to ‘preserve the status quo until, upon final hearing,
a court may grant full, effective relief.’” Simmons v. Butler, No. 4:19CV10 HEA, 2019 WL
330464, at *1 (E.D. Mo. Jan. 25, 2019) (quoting Kansas City S. Transp. Co., Inc. v. Teamsters
Local Union # 41, 126 F.3d 1059, 1065 (8th Cir. 1997)). Temporary restraining orders are
“extraordinary and drastic remed[ies] and should not be granted unless plaintiffs clearly carry their
burden of persuasion.” Morningside Church, Inc. v. Rutledge, 471 F. Supp. 3d 921, 924 (W.D.
Mo. 2020) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) and Sanborn Mfg. Co., Inc. v.
Campbell/Hausfeld Scott Fetzer Co., 997 F.2d 484, 485-96 (8th Cir. 1993)). The burden on a party
moving for temporary injunctive relief is heightened when the relief requested “will give plaintiff
substantially the relief it would obtain after a trial on the merits.” Dakota Indus., Inc. v. Ever Best
Ltd., 944 F.2d 438, 440 (8th Cir. 1991) (citation omitted).
The Eighth Circuit applies the same standards to a request for a preliminary injunction and
temporary restraining order. See S.B. McLaughlin & Co. v. Tudor Oaks Condo. Project, 877 F.2d
707, 708 (8th Cir. 1989) (affirming the district court’s application of the Dataphase factors to a
motion for a temporary restraining order); Jackson v. Nat’l Football League, 802 F. Supp. 226,
229 (D. Minn. 1992). In doing so, federal courts in the Eighth Circuit rely on the four Dataphase
factors: (1) the likelihood that the movant will succeed on the merits; (2) the threat of irreparable
harm to the movant; (3) the state of the balance between this harm and the injury that granting the
injunction will inflict on other parties; and (4) the public interest. Chevron U.S.A. v. 11500
Manager, LLC, No. 09-6070-CV-SJ-HFS, 2009 WL 1974590, at *2 (W.D. Mo. July 7, 2009); see
Dataphase Sys. Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc). The first and
second factors (likelihood of success on the merits and threat of irreparable harm) are the most
important factors because the lack of either is an independently sufficient ground to deny
preliminary injunctive relief. Adventist Health Sys./SunBelt, Inc. v. U.S. Dep’t of Health & Human
Servs., 17 F.4th 793, 801 & 806 (8th Cir. 2021); see Sessler v. City of Davenport, 990 F.3d 1150,
1156 (8th Cir. 2021) (movant’s failure to demonstrate a sufficient irreparable harm “is an
independently sufficient basis upon which to deny preliminary injunction”) (citation and quotation
marks omitted). At the same time, the critical inquiry is whether “on balance [the Dataphase
factors] weigh towards granting the injunction.” Calvin Klein Cosmetics Corp. v Lenox Labs.,
Inc., 815 F.2d 500, 503 (8th Cir. 1987) (citation omitted); see Dataphase, 640 F.2d at 113 (the
critical inquiry “is whether the balance of equities so favors the movant that justice requires the
court to intervene to preserve the status quo until the merits are determined”).
III. Discussion
A. Likelihood of Success on the Merits
As the Eighth Circuit has recently explained, to satisfy this Dataphase factor, a movant
need only show “it has at least a fair chance of prevailing” on the merits and need not show a
“greater than fifty percent likelihood that it will prevail on the merits.” Progressive Technologies,
Inc. v. Chaffin Holdings, Inc., 33 F.4th 481, 485 (8th Cir. 2022) (citations and quotation marks
omitted); accord Ponce v. Broker Sols., Inc., No. 6:20-03052-CV-RK, 2020 WL 1148589, at *1
(W.D. Mo. Mar. 9, 2020). Upon review of the complaint and the parties’ briefing and affidavits,
the Court finds Plaintiffs have demonstrated a fair chance of prevailing as to some of their claims.
The FMLA prohibits employers from interfering with, restraining, or denying the exercise
of rights provided to employees under the FMLA. 29 U.S.C. § 2615(a)(1). Interference with
FMLA benefits to which an employee is entitled includes miscalculating an employee’s FMLA
leave entitlement. See Hernandez v. Bridgestone Ams. Tire Operations, LLC, 831 F.3d 940, 948
(8th Cir. 2016). In addition, the Eighth Circuit recognizes a discrimination claim, likely also based
under § 2615(a)(1), when an employer takes adverse action against an employee “because the
employee exercises rights to which he is entitled under the FMLA.” Pulczinski v. Trinity
Structural Towers, Inc., 691 F.3d 996, 1006 (8th Cir. 2012).
KCS concedes the FMLA leave entitlement methodology it adopted in September of 2021
does not “count time on authorized leave towards an employee’s FMLA entitlement,” and has
indicated that “going forward, KCS[] has decided to count approved leave towards an employee’s
FMLA entitlement.” (Doc. 31 at 13 n.1.) The Court recognizes that claims for injunctive relief
(like here) “may become moot if challenged conduct permanently ceases” such that “there is no
reasonable expectation that the wrong will be repeated.” Comfort Lake Ass’n, Inc. v. Dresel
Contracting, Inc., 138 F.3d 351, 354 (8th Cir. 1998) (citation and quotation marks omitted). Under
such circumstances the defendant must satisfy the “heavy burden” to moot a case by voluntarily
ceasing unlawful conduct. Prowse v. Payne, 984 F.3d 700, 702 & 703 (8th Cir. 2021) (citation
and quotation marks omitted). For purposes of this factor, however, particularly in light of KCS’s
acknowledgment and apparent voluntary change to its FMLA policies, the Court finds Plaintiffs
have demonstrated a fair chance of prevailing on this claim.6
The Court also finds Plaintiffs have demonstrated a fair chance of prevailing on the merits
as to their claim challenging KCS’s FMLA leave availability methodology to the extent KCS
counts every hour of time marked off for FMLA leave as an hour of FMLA leave. Federal law
generally requires that “only the amount of leave actually taken may be counted toward the
employee’s leave entitlement.” § 825.205(b)(1); see 2612(b)(1) (“The taking of leave

6 KCS argues Plaintiffs are unlikely to prevail on this claim, despite its apparent concession given
its voluntary change to the railroad’s FMLA policies, because FMLA-interference claims require actual
harm (or prejudice) to the employees. (See Doc. 31 at 19 (citing Ragsdale v. Wolverine World Wide, Inc.,
535 U.S. 81, 89 (1992); other citation omitted).) Specifically, KCS argues Plaintiffs do not allege such
harm or prejudice because virtually all “Plaintiffs would still have exhausted their FMLA leave” even if
approved leave had been included within their FMLA leave-entitlement calculation. (Id. at 20; see Doc.
31-14 at 1-2, ¶ 33.) As Plaintiffs point out in their response, however, this conclusion appears to presume
KCS’s methodology for calculating employees’ FMLA leave availability is lawful, which is itself and
independent claim in this action and appears to be the dominant dispute in this case.
intermittently . . . shall not result in a reduction in the total amount of leave to which the employee
is entitled . . . beyond the amount of leave actually taken.”). Moreover “[w]here an employee
works a part-time schedule or variable hours, the amount of FMLA leave that an employee uses is
determined on a pro rata or proportional basis.” Id.
The regulations provide the following examples:
[I]f an employee who would otherwise work 40 hours a week takes off eight hours,
the employee would use one-fifth (1/5) of a week of FMLA leave. Similarly, if a
full-time employee who would otherwise work eight hour days works four-hour
days under a reduced leave schedule, the employee would use one-half (1/2) week
of FMLA leave. . . . If an employee who would otherwise work 30 hours per
week, but works only 20 hours a week under a reduced leave schedule, the
employee’s 10 hours of leave would constitute one-third (1/3) of a week of FMLA
leave for each week the employee works the reduced leave schedule.
Functionally, when an employee takes intermittent leave,7 “the employer must calculate
the amount of leave taken by comparing the number of hours or days the employee worked to the
number of hours or days the employee was scheduled to work.” Scalia v. Dep’t of Transp. & Pub.
Facilities, 985 F.3d 742, 750 (9th Cir. 2021); see also Mellen v. Trustees of Boston Univ., 504 F.3d
21, 25 (1st Cir. 2007) (explaining § 825.205(a)’s provision that only the “amount of leave actually
taken” may be counted against an employee’s FMLA leave entitlement is intended “to ensure that
an employer does not claim that an employee who takes off one day during a five-day work week
has taken off the entire week, or that an employee who works half days under a reduced work
schedule has taken off more than a half day). In other words, the amount of FMLA leave an
employee takes on an intermittent basis is necessarily tied to the amount of work an employee
missed by taking FMLA leave. Cf. § 825.205(c) (explaining overtime hours an employee are
required to work are counted against an employee’s FMLA leave entitlement while overtime hours
that are only voluntary do not count against an employee’s FMLA leave entitlement).
When Plaintiffs mark off to take FMLA leave, they are removed from the on-call list and
are charged with using FMLA hours for each hour they remain marked off for FMLA leave. In
other words, employees are not charged for the hours KCS would have had them work if they had
not been on FMLA leave. By deducting every hour an employee is marked off to take FMLA
leave without regard to whether the employee missed work by doing so, KCS charges employees

7 In the context of the FMLA, intermittent leave means “FMLA leave taken in separate blocks of
time due to a single qualifying reason.” 29 C.F.R. § 825.202(a).
with more leave than is actually taken. Thus, KCS’s FMLA leave availability methodology
appears likely to violate the FMLA.8
Finally, the Court also finds Plaintiffs have shown a fair chance of prevailing on the merits
of their claim that KCS unlawfully discriminates against employees who take FMLA leave by
placing them at the bottom of the on-call list when they again mark up. In addition to the FMLA
discrimination claim identified above, see Pulzcinski, 691 F.3d at 1006, the FMLA requires that
employees who take FMLA leave (1) “be restored . . . to the position of employment held by the
employee when the leave commenced,” or (2) “be restored to an equivalent position with
equivalent employment benefits, pay, and other terms and conditions of employment.” 29 U.S.C.
§ 2614(a). The FMLA also provides that the taking of FMLA leave “shall not result in the loss of
any employment benefit accrued prior to the date on which the leave commenced.” § 2612(a)(2).
Implementing federal regulations provide:
(a) Equivalent position. An equivalent position is one that is virtually identical to
the employee’s former position in terms of pay, benefits and working conditions,
including privileges, perquisites and status. It must involve the same or
substantially similar duties and responsibilities, which must entail substantially
equivalent skill, effort, responsibility, and authority.
. . .
(c) Equivalent pay.
(1) . . . An employee is entitled to be restored to a position with the same
or equivalent pay premiums, such as shift differential. If an employee
departed from a position averaging ten hours of overtime (and
corresponding overtime pay) each week, an employee is ordinarily entitled
to such a position on return from FMLA leave.
(2) Equivalent pay includes any bonus or payment, whether it is
discretionary or non-discretionary, made to employees consistent with
paragraph (c)(1) of this section. . . .
(d) Equivalent benefits. Benefits include all benefits provided or made available
to employees by an employer, including group life insurance, health insurance,
disability insurance, sick leave, annual leave, educational benefits, and pensions,
regardless of whether such benefits are provided by a practice or written policy of

8 In response, KCS argues that employees simply should not mark off to take FMLA leave when
they are not at or near the top of the on-call list and are unlikely to be called in to work, and that employees
need not mark off for 24+ hours. To be sure, KCS’s somewhat unique on-call system to staff its railroad
needs does not seem to cleanly fit within FMLA’s basic framework. Nonetheless, it is KCS’s responsibility
to ensure compliance with FMLA-leave requirements and KCS, as the employer, may not interfere with
employees’ FMLA rights as Plaintiffs have alleged here.
an employer through an employee benefit plan as defined in Section 3(3) of the
Employment Retirement Income Security Act of 1974, 29 U.S.C. 1002(3).
(1) At the end of an employee’s FMLA leave, benefits must be resumed in
the same manner and at the same levels as provided when the leave began[.]
. . .
(2) An employee may, but is not entitled to, accrue any additional benefits
or seniority during unpaid FMLA leave. Benefits accrued at the time leave
began, however, (e.g., paid vacation, sick or personal leave to the extent not
substituted for FMLA leave) must be available to an employee upon return
from leave.
. . .
(e) Equivalent terms and conditions of employment. An equivalent position must
have substantially similar duties, conditions, responsibilities, privileges and status
as the employee’s original position.
. . .
(2) The employee is ordinarily entitled to return to the same shift or the
same or an equivalent work schedule.
(3) The employee must have the same or an equivalent opportunity for
bonuses, profit-sharing, and other similar discretionary and non-
discretionary payments.
. . .
29 C.F.R. 825.215(a), (c)-(e).
Initially, the first question is whether an employee’s position on the on-call list at any given
point in time is a “position of employment” or an employment benefit, as Plaintiffs argue it is. The
regulations make clear a position of employment for purposes of FLMA restoration requirement
concerns the employee’s pay, benefits and working conditions, privileges, perquisites, and status.
Other federal courts have broadly construed what is an employment benefit. See, e.g., Bailey v.
Pretis Innovative Packaging, Inc., 600 F.3d 748, 751-52 (7th Cir. 2010) (finding little difficulty in
concluding the employer’s removal of absenteeism points is an employment benefit).
KCS relies on an opinion from the Third Circuit, Dilario v. Manor, 319 F. App’x 115 (3d
Cir. 2009), to argue that Plaintiffs are unlikely to succeed on this claim. Dilario is easily
distinguishable, however. In Dilario, the employee argued his employer violated the FMLA by
placing him last in line to receive overtime work when he returned from taking FMLA leave. Id.
at 118. The Third Circuit concluded the employee was ultimately “reinstated to the same position
and was immediately put back into the overtime rotation, subject to [the employer]’s generally
applicable overtime policy,” that ensured “employees had roughly equal opportunities to work
overtime.” Id. In doing so, the Third Circuit relied on § 825.215(c), requiring that employees
have the same “average overtime opportunities” when returning from FMLA leave. Id. The court
found as a factual matter the employee’s opportunity for overtime hours was not in fact
substantially reduced as a result of the employer’s actions upon the employee’s return from FMLA
leave. Id. Rather than overtime pay, Plaintiffs’ claim here directly implicates employees’ regular
pay. Moreover, Dilario turned on the factual question whether the employee actually had the same
opportunity or not. To the extent an equivalent fact issue exists here, it would be improper to
resolve it at this very early stage. Finally, compared to overtime, the FMLA and its implementing
regulations require that on return from FMLA leave, an employee must be returned to a position
“virtually identical” in terms of pay, benefits and working conditions, privileges, perquisites, and
status. § 825.215(a).
To the extent the employee’s position on the on-call list is an employment benefit, federal
regulations require that employees returning from FMLA leave have the “same or an equivalent
work schedule” and “the same or an equivalent opportunity for bonuses, profit-sharing, and other
similar discretionary and non-discretionary payments” as the employee had prior to taking FMLA
leave. When employees mark off to take FMLA leave, they have accrued a particular position on
the on-call list while they were marked on. It seems there is a fair chance that under the FMLA
and implementing regulations, employees like Plaintiffs are entitled to retain their position on the
on-call list as they had accrued at the time they marked off to take FMLA leave. Plaintiffs do not
argue here or in the complaint that KCS must keep employees on the on-call list, and moving these
employees up the list, while they are marked off for FMLA leave. Nor does it appear that doing
so would necessarily be required by the FMLA. See 2614(a)(3)(A) (the FMLA does not entitle
employees to “the accrual of any seniority or employment benefit[] during any period of leave”).
In sum, the Court finds Plaintiffs have demonstrated a fair chance of prevailing on the merits of
this claim as well.
As to the remaining claims, however, the Court does not find Plaintiffs have shown a fair
chance of prevailing. For example, while Plaintiffs claim that KCS undercounts average hours
actually worked in the relevant preceding 12-month period in calculating employees’ FMLA leave
entitlement, Plaintiffs have supplied only a single affidavit in which one of the Plaintiffs attest
only that the hours KCS reported in an email explaining the Plaintiff’s FMLA leave entitlement
calculation was “artificially low” because he “typically work[s] at least 35 hours per week, and
often many more.” (Doc. 6 at 4, ¶ 9.) This falls short of supporting Plaintiffs’ claim that KCS
undercounts the hours its employees actually work. Similarly, Plaintiffs’ claim that KCS crew
management agents generally require employees to mark off for FMLA leave for at least 24 hours
is largely belied by the record Plaintiffs submitted in support of their motion for a temporary
restraining order. For instance, one affidavit submitted in support of Plaintiffs’ motion for
temporary restraining order attests that “KCS requires employees to use FMLA leave in 24-hour
increments” (Doc. 7 at 3, ¶ 5), while the remaining affidavits suggest only that KCS requires
employees to mark off for FMLA leave in 24-hour increments but may allow employees to mark
back up before that 24-hour period is over. (Docs. 9 at 3, ¶ 5; 10 at 3, ¶ 6; 12 at 3, ¶ 5.)
Additionally, some records show employees marked off for FMLA leave for increments recorded
to-the-minute and not in 24-hour increments (e.g., 16 hours and 7 minutes, or 11 hours and 16
minutes). (See supra note 4.)
Finally, Plaintiffs’ claim that KCS unlawfully discriminates against employees who take
FMLA leave by requiring them to take FMLA leave in increments longer than one hour are
similarly deficient. And even if it were true, it appears this claim (which alleges a substantive
violation of the FMLA) postured in Count Two as a discrimination claim serves only to bootstrap
and enhance their claim that KCS unlawfully discriminates by placing employees returning from
FMLA leave on the bottom of the on-call list, as explained above.
In sum, the Court finds Plaintiffs have demonstrated a fair chance of prevailing on the
merits of at least some of their claims.
B. Threat of Irreparable Harm
Ultimately, the “burden [is] on [the movant] to establish the threat of irreparable injury.”
Gen. Motors Corp. v. Harry Brown’s, LLC, 563 F.3d 312, 319 (8th Cir. 2009). In doing so, the
movant must show it has “no adequate remedy at law because its injuries [could not] be fully
compensated through an award of damages.” Mgmt. Registry, Inc. v. A.W. Cos., Inc., 920 F.3d
1181, 1183 (8th Cir. 2018) (citation and internal quotes omitted). To establish irreparable harm,
“a party must show that the harm is certain and great and of such imminence that there is a clear
and present need for equitable relief.” Iowa Utils. Bd. v. FCC, 109 F.3d 418, 425 (8th Cir. 1996).
Additionally, rather than showing a “mere possibility” of irreparable harm, the “movant must show
he is ‘likely to suffer irreparable harm’” if the temporary restraining order is denied. Sessler v.
City of Davenport, 990 F.3d 1150, 1156 (8th Cir. 2021) (quoting Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008)). While no single factor is determinative of whether to grant a
temporary restraining order, “[f]ailure to show irreparable harm is an independently sufficient
ground upon which to deny a temporary restraining order.” Simmons v. Butler, No. 4:19CV10
HEA, 2019 WL 330464, at *1 (E.D. Mo. Jan. 25, 2019) (citing Watkins v. Lewis, 346 F.3d 841,
844 (8th Cir. 2003).
Plaintiffs acknowledge that lost wages – the primary harm from termination (or by
extension, threatened termination) – does not generally support a finding of irreparable harm to
entitle them to preliminary injunctive relief. (Doc. 4 at 47 (citing Adam-Mellang v. Apartment
Search, Inc., 96 F.3d 297, 300 (8th Cir. 1996) (other citations omitted)); see Sampson v. Murray,
415 U.S. 61, 90 (1974) (“[T]emporary loss of income, ultimately to be recovered, does not usually
constitute irreparable injury.”); see also O’Grady v. Veterans Admin., No. 11-3145 (PJS/AJB),
2012 U.S. Dist. LEXIS 34209, at *5-6 (D. Minn. Jan. 18, 2012) (applying Sampson to determine
loss of salary due to termination is insufficient to establish irreparable harm). When employers
violate the FMLA, employees are entitled to damages or compensation and equitable relief
including employment, reinstatement, and promotion. See 29 U.S.C. § 2617(a)(1). Thus, should
Plaintiffs prevail on their claims, they will be both compensated (including for lost wages,
employment benefits, and other compensation) and are entitled to equitable relief including
reinstatement and employment. See Mann v. Haigh, 891 F. Supp. 256, 264 (E.D.N.C. 1995)
(finding no irreparable harm from loss of job, forfeiting accrued leave, emotional damage, and
effects on plaintiff’s health condition in FMLA case, recognizing “[t]he whole point of the FMLA
. . . is to protect such benefits for eligible employees [such as reinstatement, restoration of back
pay, etc.]; judicial enforcement of FMLA serves to avoid entirely the issue of ‘irreparable’ harm
by redressing these damages and restoring a successful plaintiff to his status quo ante”).
Nonetheless, Plaintiffs claim KCS’s flawed and unlawful FMLA methodologies cause
irreparable harm in two ways: first, employees are chilled from taking sick or personal leave when
they otherwise would have taken FMLA leave because doing so makes them susceptible to
discipline or termination; and second, “every day that KCS employees are forced to work instead
of taking time off is a day they can never have back,” essentially causing pain and suffering from
either being forced to work or not having the opportunity to care for “newborn children or sick
relatives, or tak[e] needed medical rest.” (Id. at 46 & 47.) Neither is an adequate irreparable harm
that entitles Plaintiffs to temporary injunctive relief in this case, however.
First, whether a chilling effect exists is “an issue of fact that the employee seeking a
preliminary injunction must prove.” Adam-Mellang, 96 F.3d at 301 (affirming denial of injunction
when alleged chilling effect on other employees had no basis in the record). Plaintiffs argue that
they have satisfied this standard here because “the record demonstrates a consistent pattern of
discriminating against, investigating, and discharging employees who take FMLA leave to which
they are entitled.” (Doc. 4 at 50.) Plaintiffs’ theory of irreparable harm because of a chilling effect
appears to be twofold: (1) Plaintiffs and others are chilled from taking FMLA leave entirely, and
(2) Plaintiffs and others are chilled from taking other available leave like sick and personal leave
because of KCS’s excessive-use-of-leave policy. The first theory, though, begs the question: to
what specific hours of FMLA leave are Plaintiffs entitled (as to both entitlement/allotment and
available balance)? This, of course, is the dominant contested issue in this case. KCS has
determined, based on its FMLA methodologies, that Plaintiffs have exhausted their 12 workweeks
of FMLA leave. Plaintiffs believe KCS’s methodologies are flawed. In other words, that Plaintiffs
(at this point) do not have FMLA leave available to take is the critical question in this case and
does not itself demonstrate irreparable harm. See also Burton v. S.D. Warren Co., No. 2:17-cv-
00110-JDL, 2017 WL 8696533, at *2 (D. Me. May 19, 2017) (irreparable harm due to a chilling
effect is based upon a showing the unlawful conduct “is likely to deter other employees from
attempting to exercise their rights under the statute”).
Likewise, as to the theory that Plaintiffs are chilled from taking other leave available to
them, Plaintiffs have simply not shown that is the case. While some Plaintiffs have expressed
concern about taking this other leave in light of the excessive-use policy, they have continued to
do so, when necessary, particularly those with chronic health conditions like migraines and
ulcerative colitis. (See Doc. 6 at 4, ¶ 10; 8 at 4, ¶ 10; 9 at 4, ¶ 10; 10 at 5, ¶ 12; 11 at 3, ¶ 9.) In
addition, although Plaintiff Caleb Schmitt submitted a supplemental declaration in which he states
he is now under investigation for taking sick leave and that on eight of the nine occasions giving
rise to the investigation he took sick leave for “the condition for which KCS had approved me for
FMLA leave” (Doc. 38 at ¶ 2), the fact remains that Plaintiff Schmitt took other leave available to
him. And because termination is not an irreparable harm, the threat of termination does not
somehow transform this harm to an irreparable harm.
Second, Plaintiffs allege the employees’ pain and suffering from being forced to work and
not having FMLA leave to which they are entitled (should they be successful) provides the
requisite irreparable harm. This is not a harm for which the FMLA provides a remedy, however.
See 29 U.S.C. § 2617(a). “When legislation expressly provides a particular remedy or remedies,
courts should not expand the coverage of the statute to subsume other remedies.” Furrer v. Brown,
62 F.3d 1092, 1096 (8th Cir. 1995) (citation and internal quotes omitted); see also Substation K,
Inc. v. Kansas City Power & Light Co., No. 4:19-cv-00031-SRB, 2019 WL 2411439, at *4 (W.D.
Mo. June 7, 2019) (applying Furrer to exclude recovery of damages when statute at issue only
provided for injunctive relief). Emotional distress damages are not recoverable under the FMLA.
Rodgers v. Des Moines, 435 F.3d 904, 909 (8th Cir. 2006). The Court cannot manufacture a
remedy for emotional injuries like pain and suffering which is not available under the FMLA. See
also Mann, 891 F. Supp. at 264-65 (holding because the FMLA does not authorize recovery for
emotional or non-pecuniary claims, “emotional damage” does not establish an irreparable harm).
Finally, Plaintiffs have not identified a specific harm (other than essentially a “per se” violation of
their FMLA rights) to the extent any Plaintiff attests they had to go to work when they otherwise
would have taken FMLA leave, notwithstanding (again) other forms of leave available to them
other than FMLA leave that the FMLA does not otherwise remedy.9
For the reasons explained above, the Court does not find Plaintiffs have adequately
demonstrated irreparable harm that would entitle them to the extensive temporary emergency
injunctive relief they seek in this case. Because Plaintiffs have not demonstrated irreparable harm,
they are not entitled to a temporary restraining order. See Sessler, 990 F.3d at 1156 (failure to
demonstrate irreparable harm is fatal to a movant’s motion for preliminary injunctive relief).
C. Balance of Harm and Public Interest
Because Plaintiffs fail to demonstrate an adequate irreparable harm to justify the
extraordinary remedy of temporary injunctive relief in this case, the Court need not consider the

9 To the extent Plaintiffs rely on Stagliano v. Herkimer Central School District, 151 F. Supp. 3d
264 (N.D.N.Y. 2015), the Court notes that the district court in that case found the plaintiff had adequately
demonstrated irreparable harm in an FMLA lawsuit because the plaintiff demonstrated a chilling effect as
to employees taking any sick leave whatsoever if immediate injunctive relief were not provided in that case.
See id. at 272-75. As the district court’s discussion of the irreparable-harm factor demonstrates, the concern
in Stagliano was that plaintiff demonstrated other employees were chilled from taking sick leave altogether.
Here, however, Plaintiffs do not contest they have other forms of leave (personal and sick leave) available
to them, and Plaintiffs have not demonstrated a chilling effect as to this other leave as a factual matter.
remaining factors. See Allied Servs., LLC v. Smash My Trash, LLC, No. 21-cv-00249-SRB, 2021
WL 1671675, at *3-5 (W.D. Mo. April 28, 2021) (considering only the irreparable harm factor to
deny preliminary injunctive relief); Gamble v. Minn. State Indus., No. 16-cv-2720-JRT-KMM,
2017 WL 6611570, at *3 (D. Minn. Dec. 1, 2017) (same), adopted by No. 16-2720 (JRT/KMM),
2017 WL 6607396 (D. Minn. Dec. 27, 2017).
IV. Conclusion
While Plaintiffs have demonstrated a fair chance of succeeding on the merits as to some of
their claims in this FMLA class action, any such success does not overcome Plaintiffs’ failure to
demonstrate adequate irreparable harm to be entitled to the extraordinary relief of a temporary
restraining order. Plaintiffs’ motion for temporary restraining order (Doc. 3) is DENIED.
IT IS SO ORDERED.

s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT

DATED: July 21, 2022

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10242497. Public record. Not legal advice.