Roberson v. The Kansas City Southern Railway Co.

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

RODERICK ROBERSON, et al., )

)

Plaintiff, )

)

v. ) Case No. 4:22-cv-00358-RK

)

THE KANSAS CITY SOUTHERN )

RAILWAY CO., )

)

Defendant. )

ORDER

Before the Court is Plaintiffs’ Motion to Certify Class. (Doc. 97.) This motion is fully

briefed. (Docs. 98, 104, 111.) After careful consideration, and for the reasons stated below, the

motion is DENIED.

Background

This case arises out of Kansas City Southern Railway Co.’s (“KCS”) alleged violations of

the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. Plaintiffs bring claims on

behalf of a putative class of current, former, and future KCS employees working as conductors and

engineers, collectively referred to as Train, Engine & Yard (“TE&Y”) employees by the parties.

Plaintiffs’ first claim (Count I) alleges FMLA interference based on the method KCS used

to calculate TE&Y employees’ available FMLA leave from September 2021 to August 2022

(“FMLA leave calculation policy”). (Doc. 1 at 33-41.) Plaintiffs allege that under this

methodology, employees were told they exhausted their available FMLA leave after taking as few

as twelve days of FMLA leave (far short of the twelve weeks granted by the FMLA).1 (Doc. 98 at

1.) The FMLA leave calculation policy was imposed in response to KCS’s lack of a system for

tracking intermittent FMLA leave. (Doc. 99-11 at 5-6.) “Intermittent leave is FMLA leave taken

in separate blocks of time due to a single qualifying reason.” 29 C.F.R. § 825.202(a). This policy

was used to calculate employees’ FMLA leave from September 2021 to August 2022. KCS

1 For a comprehensive discussion of the FMLA leave calculation policy, see Doc. 45 at 3-4. The

specific details of the FMLA leave calculation policy are not relevant to the class certification motion.

discontinued the FMLA leave calculation policy in August 2022, after this litigation commenced.

(Doc. 99-11 at 15-16.)

Plaintiffs’ second claim (Count II)2 alleges FMLA discrimination based on KCS’s policy

of moving TE&Y employees to the bottom of job boards3 after returning from FMLA leave, rather

than returning them to the position they were in at the time they took leave (“bottom-of-the-board

policy”). TE&Y employees either work “on-call” or “fixed” schedules. (Doc. 31-1 ¶¶ 4, 8.)

On-call TE&Y employees are either designated as “marked up” (meaning the employee is

available for on-call work as needed) or “marked off” (meaning the employee is unavailable to be

called for work, for reasons such as taking leave). As discovery progressed, it became clearer that

this bottom-of-the-board policy varies depending on the type of board an employee is on. If an

employee is on a “Drop Turn” board, they will be moved to the bottom of the board any time they

mark off for FMLA leave. If an employee is on a “Non-Drop Turn” board, they will only be moved

to the bottom of the board if, during their leave and before marking up, the spot they were in before

taking leave gets called into work. (See Docs. 31-1 ¶ 14; 104-6 at 19:9-22:16.) Under each

variation, an employee may be placed at the bottom of the board rather than being placed in the

spot they held at the time of taking FMLA leave depending on the circumstances.

This motion for class certification comes after both class and merits discovery have

concluded. Plaintiffs now ask the Court to certify the following class under Federal Rule of Civil

Procedure 23:

Current, future, and former KCS Train Engine & Yard (“TE&Y”) employees who

have worked enough hours to be eligible for FMLA leave who, at any time from

three years preceding the Complaint’s filing to the resolution of this action, took or

attempted to take FMLA leave.

(Doc. 98 at 2.) Plaintiffs suggest a “hybrid” class action under Rule 23(b)(2) and 23(b)(3). They

seek certification of a 23(b)(2) class to determine KCS’s liability and obtain injunctive and

declaratory relief from the Court. They propose a 23(b)(3) class to address the calculation and

2 Plaintiffs are no longer pursuing claims relating to KCS’s alleged requirement that employees

mark off in 24-hour increments. (See Doc. 111 at 23 n.11.)

3 On-call TE&Y employees are assigned to job boards. Boards function by placing employees on

a rotating list based on when they last worked, and employees are generally called to work in that order.

(Doc. 31-1 ¶¶ 4, 7.) A “pool board” is one which operates between two or more locations, one of which

is the employee’s home terminal. (Id. ¶¶ 4-5.) When called, TE&Y employees on pool boards typically

operate a train from their home terminal to an away terminal and back, after a rest period. (Id.) There are

also “extra boards” which exist to fill temporary vacancies. (Id. ¶ 7.)

award of money damages. (Id. at 3.) In the alternative, Plaintiffs request that the Court certify

issue classes under 23(c)(4). (Id. at 3.) Finally, in their reply brief, Plaintiffs suggest for the first

time that the Court should define subclasses if it finds the proposed class overbroad. (Doc. 111 at

5.)

Rule 23 Standard

“In order to obtain class certification, a plaintiff has the burden of showing that the class

should be certified and that the requirements of [Federal] Rule [of Civil Procedure] 23 are met.”

Ebert v. Gen. Mills, Inc., 823 F.3d 472, 477 (8th Cir. 2016). The Court “adheres to a rigorous

analysis of the Rule 23 requirements, which includes that a class ‘must be adequately defined and

clearly ascertainable.’” Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992, 996 (8th

Cir. 2016) (citation omitted). Ascertainability is an “implicit” Rule 23 requirement that must be

considered. McKeage v. TMBC, LLC, 847 F.3d 992, 998 (8th Cir. 2017).

Plaintiff must also satisfy the four explicit prerequisites in Rule 23(a) and at least one of

the three subsections of Rule 23(b). Ebert, 823 F.3d at 477. The four Rule 23(a) prerequisites are:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or

defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the

class.

Fed. R. Civ. Pro. 23(a)(1)-(4); see also Ebert, 823 F.3d at 477. A Rule 23(b)(2) class may be

certified when “the party opposing the class has acted or refused to act on grounds that apply

generally to the class, so that final injunctive relief or corresponding declaratory relief is

appropriate respecting the class as a whole.” Ebert, 823 F.3d at 480 (citing Fed. R. Civ. P.

23(b)(2)). “[C]ohesiveness is the touchstone of a (b)(2) class.” Id. Alternatively, to obtain

certification of a Rule 23(b)(3) class, Plaintiffs must show that common questions “predominate”

over individual questions and that a class action is “superior” to other available methods of

adjudication. Fed. R. Civ. P. 23(b)(3). Where a party seeks to certify a class under both Rule

23(b)(2) and Rule 23(b)(3), it must satisfy the requirements of each subsection. See Harris v.

Union Pac. R.R. Co., 953 F.3d 1030, 1037 (8th Cir. 2020) (finding individualized questions

defeated both cohesiveness and predominance and reversing certification of 23(b)(2) and 23(b)(3)

hybrid class).

KCS contests Plaintiff’s proposed classes4 at nearly every turn. The Court will focus on

Rule 23(a)(2) commonality and class-member standing, finding these issues dispositive of the

present motion for class certification.5

Discussion

I. Plaintiffs’ Proposed Class Fails to Satisfy Rule 23(a)(2) Commonality

Plaintiffs’ proposed class covers current, former, and future employees; fixed-schedule and

on-call employees; and employees who only worked prior to the implementation of KCS’s FMLA

calculation policy in September 2021, as well as those who worked after it was implemented and

after it was discontinued. KCS argues that this sweeping class cannot satisfy the 23(a)(2)

commonality requirement. The Court agrees.

The commonality requirement is not an onerous burden, and “[e]ven a single [common]

question will do.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 359 (2011) (citations omitted).

“Commonality requires the plaintiff to demonstrate that the class members ‘have suffered the same

injury.’ This does not mean merely that they have all suffered a violation of the same provision of

law.” Id. at 349-50 (citation omitted). Courts have frequently found the commonality requirement

satisfied when plaintiffs can show a uniform and organization-wide policy applicable to every class

member. See, e.g., Postawko v. Mo. Dep’t of Corr., No. 2:16-cv-04219, 2017 WL 3185155, at *8

(W.D. Mo. July 26, 2017) (“[T]he unconstitutional treatment decisions alleged by Plaintiffs are

attributable to an overarching policy to which all class members are exposed, satisfying the

commonality requirement.”), aff’d, 910 F.3d 1030 (8th Cir. 2018); Cope v. Let’s Eat Out, Inc., 354

F. Supp. 3d 976, 983 (W.D. Mo. 2019). Courts have even found commonality satisfied when an

organization-wide policy uniformly subjects members of the putative class to a “substantial risk

of serious harm,” even if not all class members were actually harmed. Postawko, 910 F.3d at 1039

(citation omitted).

4 Plaintiffs propose two classes, one under Rule 23(b)(2) (seeking injunctive and declaratory relief)

and one under Rule 23(b)(3) (seeking monetary damages). The Court will refer to them as a single class

for simplicity for the Rule 23(a) analysis, since it pertains to both classes based on their identical language.

5 Plaintiffs secondarily argue the Court could certify a Rule 23(b)(1) class. (Doc. 98 at 34-37.)

KCS claims this Circuit has never certified an FMLA class under 23(b)(1), and this Court’s independent

research comports with this claim. Rule 23(b)(1) is the least used provision of Rule 23(b), typically

restricted to limited fund situations and breach of ERISA fiduciary duties. See Wildman v. Am. Century

Servs., LLC, No. 4:16-cv-00737-DGK, 2017 WL 6045487, at *6 (W.D. Mo. Dec. 6, 2017). The Court is

hesitant to certify an FMLA class under this provision given its limited use generally and novelty in the

FMLA context specifically.

Plaintiffs point to KCS’s September 2021 FMLA leave calculation policy and bottom-of-

the-board policy as questions common to the whole class. However, for the reasons explained

below, Plaintiffs have failed to meet their burden to show the commonality requirement of 23(a)(2)

is met in the proposed class.

A. FMLA Leave Calculation Policy Is Not a Basis for Commonality

Plaintiffs argue that whether KCS’s FMLA leave calculation policy violates the FMLA is

a question common to the entire class. KCS counters that the class includes some employees who

were only employed by KCS prior to September 2021 and were never subject to the FMLA leave

calculation policy at issue here. (Doc. 104 at 19 (citing David Decl. ¶ 4 (dozens of employees only

took FMLA leave prior to September 2021)).) Thus, KCS contends there is no FMLA claim those

employees could bring against KCS based on that policy, and, therefore, a class including them

cannot point to the FMLA leave calculation policy as a question common to every class member.

The cases Plaintiffs cite in support are not contrary to KCS’s counterargument. These cases

stand for the proposition that an organization-wide policy that applies to each member of the class

may provide a basis for finding 23(a)(2) commonality, even if not all class members were

necessarily harmed by that policy. In Postawko, the plaintiffs alleged that the Missouri Department

of Corrections (“MODOC”) had a “policy of withholding treatment with [direct-acting antiviral]

drugs from inmates diagnosed with [chronic Hepatitis C].” Postawko, 2017 WL 3185155, at *3.

The class as defined only included those inmates diagnosed with, or subsequently diagnosed with,

that disease. Id. at *3. Therefore, the policy necessarily applied to the whole class, and the court

found commonality satisfied. Id. at *7; Postawko, 910 F.3d at 1039 (affirming district court,

finding commonality satisfied where physical symptoms of class members varied, but each was

subject to a “single . . . policy or practice that creates a substantial risk of serious harm.”). That is

not what we have here. KCS’s September 2021 FMLA leave calculation policy never applied to

employees who left KCS’s employment prior to its implementation; yet, these employees are swept

up in a broad class which stretches back to 2019.

Plaintiffs try to save commonality by arguing that former employees might return to their

positions at KCS, and thus face a “substantial risk of future harm.” A relevant comparison would

be if, in Postawko, the class included former MODOC inmates with chronic Hepatitis C who left

MODOC’s custody prior to the implementation of the policy of withholding direct-acting antiviral

drugs. Plaintiffs have not cited case law to support finding commonality in this factual scenario—

in which a class includes members who left the organization prior to the implementation of the

challenged policy—and the Court’s independent analysis has not uncovered legal support.

Employees who only worked for KCS prior to the FMLA leave calculation policy’s

implementation are not at substantial risk of serious harm merely because they might plan to return

to work at KCS. This potential is highly speculative, depending not only on the employee’s desire

to return (something Plaintiffs have not shown for each former employee), but also on whether

KCS would reemploy them. Because the employees who worked for KCS prior to September

2021 were never subject to risk from the FMLA leave calculation policy, its legality would not

“resolve an issue that is central to the validity” of their FMLA claims. Dukes, 564 U.S. at 350.

Commonality fails on this point.

B. Bottom-of-the-Board Policy Is Not a Basis for Commonality

Plaintiffs also point to KCS’s “bottom-of-the-board” policy as a question common to the

entire class. KCS counters that the bottom-of-the-board policy (1) is not a singular policy, and (2)

does not apply to employees who work only fixed schedules. Thus, KCS contends there is no

FMLA claim those fixed-schedule employees could bring against KCS based on that policy.

KCS’s first point as to lacking a singular policy is unpersuasive. The Court recognizes that

there may not be one uniform “bottom-of-the-board” policy across job boards. Non-Drop Turn

boards only place an employee at the bottom of the board if they miss a trip; conversely, employees

on Drop Turn boards are moved to the bottom regardless of whether they miss a trip. However,

the “risk of substantial harm” from the possibility of being moved to the bottom of the board is

present for both types of boards even though some employees working Non-Drop Turn boards will

not be moved to the bottom of the board upon returning from FMLA leave.

KCS’s second point as to fixed-schedule employees is more compelling. Plaintiffs concede

that an employee working only a fixed schedule would not suffer harm from the bottom-of-the-

board policy. (See Doc. 111 at 4.) Nevertheless, Plaintiffs contend that employees can and do

move back and forth between fixed-schedule and on-call positions, subjecting them to a risk of

harm, and that employees who only work fixed schedules will be weeded out at the damages phase.

A safety mechanism on the back end cannot excuse a failure to meet Rule 23(a) requirements on

the front end. KCS points to nearly 200 TE&Y employees who took FMLA leave during the class

period but worked only jobs with fixed schedules. (Doc. 104-20 ¶ 7.) Since these employees did

not work on any type of rotating job board, the bottom-of-the-board policy was not applicable to

their positions. The policy should apply across the defined class, with tailored classes meeting

commonality more readily than broad classes. See Rentschler v. Carnahan, 160 F.R.D. 114, 115-

16 (E.D. Mo. 1995) (finding commonality satisfied for a class of inmates alleging overcrowding,

where that class excluded inmates in the capital punishment housing unit (which did not have the

same overcrowding issue)). It is too speculative that all employees on a fixed schedule will at

some point work on call; without more certainty here, the risk of substantial harm is low or

nonexistent. The bottom-of-the-board policy is not a common question.

Each of the challenged policies only apply to a subset of the broad class Plaintiffs defined.

Therefore, cases certifying a class based on an organization-wide policy applicable to all class

members, and subjecting each to a risk of substantial harm, are inapposite. Plaintiffs have not

identified any other questions common to the entire class. Therefore, the proposed class fails Rule

23(a)(2)’s commonality requirement.6

II. Former Employees Lack Standing to Seek Injunctive Relief Under 23(b)(2)

Even if these scope issues did not thwart Rule 23(a)(2) commonality and 23(b)(3)

predominance, Plaintiffs cannot proceed with a 23(b)(2) class which includes former employees

wholesale. The Court must consider the standing of class members, and “a class cannot be certified

if it contains members who lack standing.” Johannessohn v. Polaris Indus., 9 F.4th 981, 987 (8th

Cir. 2021) (affirming denial of class certification where the class included all consumers who

bought a product, but some class members had no defect in their product and thus lacked standing).

Further, “plaintiffs must demonstrate standing for each claim that they press and for each form of

relief that they seek (for example, injunctive relief and damages).” TransUnion LLC v. Ramirez,

594 U.S. 413, 431 (2021).

Generally, former employees do not have standing to request injunctive or declaratory

relief against a former employer. See Besette v. AT&T Corp., No. 03-cv-0830-HFS, 2006 WL

2927561, at *1 (W.D. Mo. Oct. 11, 2006) (finding moot for lack of standing a case brought by a

former employee against a former employer for injunctive and declaratory relief) (citing Faibisch

v. Univ. of Minn., 304 F.3d 797, 803 (8th Cir. 2002), overruled in part on other grounds by Jones

6 For the same reasons the proposed class fails 23(a)(2) commonality, it cannot satisfy Rule 23(b)(3)

predominance of common questions—a higher standard than commonality. See Jackson v. Collections

Acquisition Co., LLC, No. 4:13-cv-00570-JAR, 2013 WL 5592603, at *3 (E.D. Mo. Oct. 9, 2013) (“The

standard for certification imposed by Rule 23(b)(3) is more demanding than the commonality requirement

of Rule 23(a).” (citation omitted)).

v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004)); see also Gilbert v. Donahoe, 751 F.3d 303,

313 (5th Cir. 2014) (“As [plaintiff] is no longer an employee of [defendant], she does not

realistically face a threat [defendant] will continue to violate her rights under the FMLA. Thus

she does not have standing to seek an injunction.”). Plaintiffs’ proposed 23(b)(2) class includes

not only current and future employees, but also former employees. These former employees do

not have standing to seek injunctive relief because they face no realistic threat that KCS will

continue to violate their FMLA rights.7

There may be an exception for former employees actively seeking reinstatement, see

Faibisch, 304 F.3d at 801, but Plaintiffs have neither shown former employees seeking

reinstatement, nor made this distinction in the proposed class definition. Therefore, in addition to

lacking 23(a)(2) commonality, the Court cannot certify a 23(b)(2) class as proposed because

Plaintiffs have failed to define a class in which all class members have standing to seek the

requested injunctive relief. For the foregoing reasons, Plaintiffs have failed to show that their

proposed hybrid 23(b)(2) and 23(b)(3) class satisfies Rule 23.8

III. Issue Classes

Plaintiffs argue in the alternative that the Court should certify two issue classes under Rule

23(c)(4). Plaintiffs define these classes as follows:

Issue 1: Whether KCS’s methodology for calculating FMLA leave comports with

the statute.

Issue 2: Whether KCS’s policy of failing to restore employees to their prior position

on the job boards when they return from FMLA leave deprives class members of

their right to “equivalent employment benefits, pay and other terms and conditions

of employment,” as guaranteed under the FMLA. 29 U.S.C. § 2614(a)(1).

7 KCS argues other subsets of the proposed class—those who are no longer approved for FMLA

leave and those who only took continuous (rather than intermittent) FMLA leave—similarly lack standing.

The Court does not reach these issues in light of its finding that former employees lack standing to seek

injunctive and declaratory relief.

8 The Court does not reach the issue of whether a hybrid class could be proper in this case because

the proposed class fails the initial 23(a) analysis and class-member standing. However, it notes that such

hybrid classes have been disfavored in recent Eighth Circuit case law because Plaintiffs must show both

cohesion under 23(b)(2) and predominance under 23(b)(3). See, e.g., Harris, 953 F.3d at 1034, 1038-39

(reversing certification of 23(b)(2) and 23(b)(3) hybrid class with two-stage trial plan for lack of cohesion

and predominance); Ebert, 823 F.3d at 481 (reversing certification of 23(b)(2) and 23(b)(3) hybrid class for

lack of cohesion) (“The district court’s narrowing and separating of the issues ultimately unravels and

undoes any efficiencies gained by the class proceeding because many individual issues will require trial.”).

(Doc. 98 at 51.)

The Eighth Circuit recently noted that “Rule 23(c)(4) allows a class action to be brought

or maintained with respect to particular issues. Such issue classes should not be certified ‘where

the predominance of individual issues is such that limited class certification would do little to

increase the efficiency of the litigation.’” Ford v. TD Ameritrade Holding Corp., No. 22-3232,

2024 U.S. App. LEXIS 22268, at *9 (8th Cir. Sept. 3, 2024) (citing In re St. Jude Med., Inc., 522

F.3d 836, 841 (8th Cir. 2008)). Issue classes “cannot be used to evade the predominance and

cohesiveness requirements” of Rule 23(b)(2) and 23(b)(3). In re NHL Players’ Concussion Injury

Litig., 327 F.R.D. 245, 266 (D. Minn. 2018). Nor can issue classes be used to evade the 23(a)

requirements. See Black v. Occidental Petrol. Corp., 69 F.4th 1161, 1186 (10th Cir. 2023) (“[I]ssue

class certification is appropriate when the issue class itself satisfies the requirements of Rule 23(a)

and the predominance and superiority requirements of Rule 23(b)(3).”).

Here, Plaintiffs’ issue classes fail for the same reasons their proposed hybrid class fails. An

issue class cannot be sheared from its class members.9 The class members as originally proposed

fail the commonality requirement of 23(a)(2) because neither issue proposed applies to every class

member. Courts have started to certify issue classes to litigate common issues of liability, to be

followed by individual trials on questions such as proximate causation and damages. See Black,

69 F.4th at 1190 (“[I]t was not clear error in judgment for the district court to conclude that it

would advance judicial economy, and resolution of the dispute, to permit class-wide resolution of

liability before determining individual class members’ damages.”). Unlike the growing number of

cases certifying issue classes on common liability questions, here there is still no common issue

of liability as to the whole class. Therefore, an issue class is unsupported.

IV. Subclasses

Finally, Plaintiffs argue—for the first time in their reply—that KCS’s arguments against

certification can be solved by the creation of subclasses. (Doc. 111 at 4-5.) The District Court

may, but is not required to, define and certify subclasses sua sponte. See U.S. Parole Comm’n v.

9 Issue classes seek to certify a particular issue, which applies to a defined class of people, for class-

wide resolution. See, e.g., In re NHL Players’ Concussion Injury Litig., 327 F.R.D. at 255 (attempting to

certify two particular issues for “Class 2: All Retired NHL Hockey Players . . . who have been clinically

diagnosed with NDDC.”). Plaintiffs suggest two issue classes in the abstract, without reference to the class

of people to whom the resolution of the issues would apply. The Court therefore assumes that the relevant

class of people is the group defined in the originally proposed class. (Doc. 98 at 2.)

Geraghty, 445 U.S. 388, 408 (1980). Ultimately, it is the party seeking class certification, “not the

District Court[, who] . . . bear[s] the burden of constructing subclasses” and proving that each

subclass meets the requirements of Rule 23. Id. Here, Plaintiffs began the job, but fell short of

their burden. Plaintiffs define a single subclass and suggest that three more could be similarly

defined by the Court to overcome KCS’s overbreadth arguments. (Doc. 111 at 5.)

The Court is hesitant to sua sponte define subclasses. First, Plaintiffs only defined one of

four potential subclasses necessary to address the overbreadth arguments. Second, Plaintiffs do

not suggest which named Plaintiffs would serve as class representatives for each of these

subclasses. See Ramthun v. Bryan Career Coll., Inc., 93 F. Supp. 3d 1011, 1022 (W.D. Ark. 2015)

(“Because the Rule 23(a) requirements must be satisfied for each subclass, each subclass must

have an adequate representative.”). Further, while no meaningful objection to numerosity was

made in the initial class certification briefing, the Court is unable to readily identify how many

employees would be in each of the subclasses. The Court, therefore, cannot conduct the rigorous

Rule 23 analysis required. Finally, many of the parties’ arguments, particularly pertaining to

23(b)(2) cohesiveness and 23(b)(3) predominance, would be applicable to any potential subclasses

Plaintiffs could form.10 In light of the persuasive arguments regarding lack of cohesion and

predominance,11 efforts by the Court to define subclasses sua sponte that satisfy Rule 23 would be

futile.

10 A great many more of the arguments focus only on the broad proposed class. Since Plaintiffs, in

their reply, propose subclasses for the first time, KCS was unable to brief and contest the formation of

subclasses in its response.

11 For example, for the only proposed subclass Plaintiffs provided—a Rule 23(b)(3) subclass

limited to the time period during which the FMLA leave calculation policy was in effect—the Court is

concerned with the need for both individualized showings of prejudice or harm under the FMLA and

individualized proof of damages stemming from the policy. The Eighth Circuit has affirmed summary

judgment against FMLA interference plaintiffs where they fail to show actual prejudice or harm, indicating

it is a prerequisite to finding liability. See, e.g., Rodgers v. City of Des Moines, 435 F.3d 905, 909 (8th Cir.

2006) (affirming summary judgment) (“The FMLA, however, ‘provides no relief unless the employee has

been prejudiced by the violation.’” (citation omitted)); Brandt v. City of Cedar Falls, 37 F.4th 470, 479 (8th

Cir. 2022) (affirming summary judgment on FMLA interference claim where plaintiff “failed to

demonstrate that she sustained any recoverable damages”). This potentially individualized question of

liability, when combined with the need for individual damage calculations, (see Doc. 98 at 49), calls into

question predominance of common issues.

Plaintiffs have not met their affirmative “burden of showing that the class [or subclasses]

should be certified and that the requirements of Rule 23 are met.” Ebert, 823 F.3d at 477. After a

rigorous analysis, the Court finds that the proposed class fails to satisfy Rule 23.

Conclusion

Accordingly, after careful consideration and for the reasons explained above, the Court

ORDERS that Plaintiffs’ motion for class certification (Doc. 97) is DENIED.

IT IS SO ORDERED.

s/ Roseann A. Ketchmark

ROSEANN A. KETCHMARK, JUDGE

UNITED STATES DISTRICT COURT

DATED: October 16, 2024