# Roberson v. The Kansas City Southern Railway Co.

> District Court, W.D. Missouri · October 16, 2024

URL: https://www.frixlaw.com/law-library/cases/10652444

## Case

- **Court:** District Court, W.D. Missouri
- **Decided:** October 16, 2024
- **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/10652444

## How later opinions describe it (automated extraction)

- reversing certification of 23(b)(2) and 23(b)(3) hybrid class for lack of cohesion
- 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)
- finding individualized questions defeated both cohesiveness and predominance and reversing certification of 23(b)(2) and 23(b)(3) hybrid class

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10652444. Public record. Not legal advice.