Hagler v. True Manufacturing Co., Inc.

Filing 17

MEMORANDUM OPINION: IT IS HEREBY ORDERED that the Motion to Dismiss Count II filed by Defendant is GRANTED; Doc. 7 . IT IS FURTHER ORDERED that Count II of Plaintiffs Complaint is DISMISSED,without prejudice. Doc. 5 , Count II. Signed by Magistrate Judge Mary Ann L. Medler on 3/26/2012. (RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DEBORAH A. HAGLER,
Plaintiff,
vs.
TRUE MANUFACTURING CO., INC.,
Defendant.

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Case No. 4:12CV328MLM

MEMORANDUM OPINION
Before the court is the Motion to Dismiss Count II filed by Defendant True Manufacturing
Co., Inc. Doc. 7. Plaintiff Deborah A. Hagler filed a Memorandum in Opposition to Defendant’s
Motion. Doc. 11. Defendant filed a Reply. Doc. 15. The parties have consented to the jurisdiction
of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Doc. 16.
LEGAL STANDARD FOR A MOTION TO DISMISS
Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 12(b)(6) provides for a motion to
dismiss based on the “failure to state a claim upon which relief can be granted.” To survive a motion
to dismiss a complaint must show “‘that the pleader is entitled to relief,’ in order to ‘give the
defendant fair notice of what the ... claim is and the grounds upon which it rests.’” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). See
also Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice” to defeat a motion to dismiss. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
(2009) (citing Twombly, 550 U.S. at 555). “[O]nly a complaint that states a plausible claim for relief

survives a motion to dismiss.” Id. at 1950 (citing Twombly, 550 U.S. at 556). The pleading standard
of Rule 8 “does not require ‘detailed factual allegations,’ but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Id. at 1949 (quoting Twombly, 550 U.S. at 555).
See also Hamilton v. Palm, 621 F.3d 816, 818 (8th Cir. 2010) (“[A]n allegation in any negligence
claim that the defendant acted as plaintiff's ‘employer’ satisfies Rule 8(a)(2)'s notice pleading
requirement for this element.”).
Further, in regard to a Rule 12(b)(6) motion, the Supreme Court holds:
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, [citations omitted] a plaintiff's obligation to provide the
“grounds” of his “entitle[ment] to relief” requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do, see Papasan
v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed.2d 209 (1986) (on a motion
to dismiss, courts “are not bound to accept as true a legal conclusion couched as a
factual allegation”). Factual allegations must be enough to raise a right to relief above
the speculative level, see 5 C. Wright & A. Miller, Federal Practice and Procedure §
1216, pp. 235-236 (3d ed. 2004) ... see, e.g., ... Neitzke v. Williams, 490 U.S. 319,
327, 109 S. Ct. 1827, 104 L. Ed.2d 338 (1989) (“Rule 12(b)(6) does not countenance
... dismissals based on a judge's disbelief of a complaint's factual allegations”);
Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed.2d 90 (1974) (a
well-pleaded complaint may proceed even if it appears “that a recovery is very remote
and unlikely”).
Twombly, 550 U.S. at 555-56. See also Gregory v. Dillard’s, Inc., 565 F.3d 464, 473 (8th Cir. 2009)
(en banc) (“[A] plaintiff ‘must assert facts that affirmatively and plausibly suggest that the pleader has
the right he claims ..., rather than facts that are merely consistent with such a right.’”) (quoting Stalley
v. Catholic Health Initiative, 509 F.3d 517, 521 (8th Cir. 2007)).
Additionally, “a well-pleaded complaint may proceed even if it strikes a savvy judge that
actual proof of those facts is improbable.” Twombly, 550 U.S. at 556 (citation omitted). “The issue
is not whether plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence
to support [its] claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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To the extent it has been argued that Twombly is applicable only in the anti-trust context, the
Court in Iqbal, 129 S.Ct. 1937, made it clear that Twombly is applicable in a broader context.
BACKGROUND
Plaintiff filed her Complaint in the Circuit Court of St. Charles County, Missouri, and
Defendant removed to this court. Docs. 1, 5. In her Complaint, Plaintiff alleges that Defendant
violated the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq. In Count I, Plaintiff
alleges that she was hired by Defendant on November 9, 1998; that she was an eligible employee
under the FMLA; that she was on approved FMLA leave from January 26, 2010, to February 1,
2010; that her return to work date was February 2, 2010; that, upon her return to work, on February
2, 2010, she became ill and left work early; that, on February 3, 2010, Plaintiff began calling in sick
and reporting her absences to Defendant; that her doctor certified that she was unable to work within
the meaning of the FMLA from February 3, 2010, with a return to full duties on February 23, 2010;
that Plaintiff completed the necessary FMLA paper work; that the serious health condition for the
February 3, 2010 through February 22, 2010 FMLA leave was a continuation of the condition for
which Plaintiff was authorized FMLA leave from January 26, 2010, to February 1, 2010; that
Defendant unilaterally and improperly designated her FMLA leave from February 3, 2010, through
February 22, 2010, as intermittent leave, thereby requiring Plaintiff to call in each day during her
approved leave; that Plaintiff discussed with Defendant that she had erratic sleep patterns due to her
illness and interaction of prescribed medications; that, due to the erratic sleep patterns, Plaintiff failed
to call-in and report her absence on February 19 and 22, 2010; that, on February 22, 2010, Defendant
discharged Plaintiff on the ground that, by failing to call-in on February 19, and 22, 2010, she violated
Defendant’s intermittent leave call-in policy; that, on the basis of a complaint filed by Plaintiff, the
U.S. Department of Labor, Wage and Hour Division (“WHD”) found that Defendant violated

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Plaintiff’s rights under the FMLA by the aforementioned conduct and found that Defendant had
engaged in similar conduct in the past; that Defendant refused to settle pursuant to a recommendation
by the WHD; and that the WHD then advised Plaintiff of her right to file a private cause of action.
Plaintiff further alleges, in Count I, that Defendant violated the FMLA by designating her leave as
intermittent, by adopting and enforcing a more stringent notification standard than the FMLA
requires, by terminating her before her return to work date of February 23, 2010, and by terminating
her employment in retaliation for her attempting to exercise her rights under the FMLA.
In Count II of her Complaint, Plaintiff brings a class action pursuant to 29 U.S.C. §
2617(a)(2) and Missouri Rule 52.08. In particular, Count II incorporates the allegations of Count
I and further states that Plaintiff brings the class action on behalf of former and current employees of
Defendant “who have applied for family or medical leave under the FMLA and have been denied,
been disciplined, had their employment terminated, or otherwise had their rights under the FMLA
interfered with or have been harassed or who have experienced adverse employment action in
retaliation for the exercise of rights under the FMLA.” Doc. 5, ¶ 31. Plaintiff also alleges, among
other things, that, “although the exact size of the class is unknown to Plaintiff at this time,
membership in the class potentially numbers dozens, if not hundreds, of former and current employees
of Defendant [] so that the class is sufficiently numerous that joinder of all members of the class is
impracticable”; that there are numerous questions of fact and law common to all class members and
which “predominate over any questions applicable only to individual” class members; that Plaintiff’s
claims are “typical of the claims of other members of the Class which she seeks to represent”; and that
a class action is superior to other available methods for the fair and efficient adjudication of the issues
raised in this action in that individual ligation would risk inconsistent results, increase the expense and

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burden on Defendant, cause wasteful duplication, and create delay in the final disposition of all issues.
Doc. 5, ¶ 32-34, 37. As such, Plaintiff seeks certification, in Count II, of a class consisting of:
all current and former Missouri employees of Defendant [] who, during the three
years prior to the filing of this action, have applied for FMLA leave and have been
denied, disciplined, discharged or otherwise had their rights under the FMLA
restricted due to adverse employment action or increased burdens imposed by
Defendant [], or such other class or subclasses as may be proper under the
circumstances.
Doc. 5 at 10-11.
LEGAL FRAMEWORK and DISCUSSION
The Federal Rules of Civil Procedure govern class actions after removal from State to federal
court. Smith v. Bayer Corp., 131 S.Ct. 2368, 2374 n.2 (2011). Fed. R. Civ. P. Rule 23(c)(1)(A)
provides that “[a]t an early practicable time after a person sues or is sued as a class representative,
the court must determine by order whether to certify the action as a class action.” Class certification
under Rule 23 is proper only if the requirements of Rule 23(a) and Rule 23(b) are satisfied.
Specifically, Rule 23(a) states that the prerequisites for class certification include the following:
(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.
All of the criteria set forth in Rule 23(a) must be met for class certification; failure to meet
anyone of them precludes class certification. Blades v. Monsanto Co., 400 F.3d 562, 568-69 (8th Cir.
2005 (citing Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614 (1997)). If Rule 23(a) criteria
are satisfied, a plaintiff seeking class certification must also satisfy one of the subsections of Rule
23(b). Id. In particular, Rule 23(b) provides that a class may be certified if the prerequisites of Rule
23(a) are met as well as the following:

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(1) prosecuting separate actions by or against individual class members would create
a risk of:
(A) inconsistent or varying adjudications with respect to individual
class members that would establish incompatible standards of conduct
for the party opposing the class; or
(B) adjudications with respect to individual class members that, as a
practical matter, would be dispositive of the interests of the other
members not parties to the individual adjudications or would
substantially impair or impede their ability to protect their interests;
(2) 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; or
(3) the court finds that the questions of law or fact common to class members
predominate over any questions affecting only individual members, and that a class
action is superior to other available methods for fairly and efficiently adjudicating the
controversy. The matters pertinent to these findings include:
(A) the class members' interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy
already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of
the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
In the pending Motion to Dismiss Count II, Defendant contends that the class described in
Plaintiff’s Complaint fails to provide sufficient definite and objective criteria; that Plaintiff cannot
satisfy the requirements of Federal Rule 23(b)(3) in regard to either interference with FMLA rights
or in regard to FMLA retaliation; that class certification must fail under Rule 23(b)(1) because
Plaintiff’s cause of action is for money damages; that certification must fail under Rule 23(b)(2)
because, although Plaintiff seeks injunctive relief, this relief does not predominate over the money
damages sought; that Plaintiff does not satisfy the commonality requirement of Rule 23(a)(2); that
Plaintiff does not satisfy the “typical” requirement of Rule 23(a)(3); and that Plaintiff cannot fairly
and adequate represent the putative class pursuant to Rule 23(a)(4). Plaintiff disputes Defendant’s
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arguments, contends that she should have the benefit of limited discovery prior to the court’s
determination of the issues presented in Defendant’s Motion to Dismiss, and requests that, in the
event the court finds that dismissal is appropriate, that the court do so without prejudice thereby
giving Plaintiff the opportunity to amend her Complaint.
The court will first address Defendant’s arguments regarding Rule 23(a)(2)’s commonality
requirement. “[T]o be certified, [a] purported class must satisfy the court that ‘there are questions
of law or fact common to the class’ that ‘predominate over any questions affecting only individual
members.’ Fed. R. Civ. P. 23(a)(2) []. In other words, class action plaintiffs must allege and
undertake to prove that each class member was injured by the same wrongful act or acts.” H & R
Block, Inc. v. American Intern, Speciality Lines Ins. Co., 546 F.3d 937, 942 (8th Cir. 2008). Rule
23(a) “does not require that every question of law or fact be common to every member of the class.”
Paxton v. Union Nat’l Bank, 688 F.2d 552, 561(8th Cir. 1982) (citing Mosley v. General Motors
Corp., 497 F.2d 1330, 1334 (8th Cir. 1974); Like v. Carter, 448 F.2d 798, 802 (8th Cir. 1971)).
“Commonality [does] require[] 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.” Wal-Mart v. Dukes, 131 S.Ct. 2541 (2011), 2551 (quoting Gen. Telephone Co. of
Southwest v. Falcon, 457 U.S. 147, 157 (1982)). As noted by the Supreme Court in Wal-Mart, a
statute “can be violated in many ways.” Id. A plaintiff’s claim that fellow employees suffered an
injury pursuant to the same statute, in this case the FMLA, “gives no cause to believe that all their
claims can productively be litigated at once. Their claims must depend upon a common contention
... . That common contention, moreover, must be of such a nature that it is capable of classwide
resolution—which means that determination of its truth or falsity will resolve an issue that is central
to the validity of each one of the claims in one stroke.” Id. In Wal-Mart, the Court gave the example

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of a case alleging discrimination under Title VII and noted that this statute can be violated by
intentional discrimination or by hiring and promotion criteria that result in disparate impact and by
the use of such practices by different supervisors within the same company. In such a case the Court
stated that, “[q]uite obviously, the mere claim by employees of the same company that they have
suffered a Title VII injury, or even a disparate-impact Title VII injury, gives no cause to believe that
all their claims can productively be litigated at once.” Id.
In the matter under consideration, Plaintiff’s description of the proposed class includes
employees who applied for and were denied FMLA leave, employees whose employment was
terminated in violation of the FMLA, employees who had their FMLA rights “interfered with,”
employees who were disciplined because they exercised their FMLA rights, employees who were
harassed because they exercised their FMLA rights, and employees who otherwise experienced
adverse employment actions in retaliation for their exercising FMLA rights. Doc. 5, ¶ ¶ 29-31; Doc.
5 at 10-11. Plaintiff contends, moreover, as the crux of her individual claim in Count I, that
Defendant “unilaterally and improperly” designated her leave as intermittent under the FMLA, the
effect of which was to require her to call in each day of her absence. Doc. 5, ¶ 13. Plaintiff also
contends and argues that Defendant violated the FMLA by adopting and enforcing a more stringent
notification standard than the FMLA requires, by terminating her under those circumstances, by
retaliating against her for exercising her rights under the FMLA, by failing to follow its own leave of
absence policy, and by failing to allow Plaintiff “the required fifteen days to furnish a medical
authorization which would have explained that the absence resulting in her discharge was a
continuation of [her] earlier leave.” Doc. 5, ¶ 22; Doc. 11 at 2-3. Thus, in essence, in Count II of her
Complaint, Plaintiff proposes a class which would include any employee of Defendant who had his
or her FMLA rights violated, for any reason, during the three years prior to the filing of this lawsuit.

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The court finds, therefore, that Plaintiff has failed to state a plausible claim that the class she proposes
can meet the commonality requirement of Rule 23(a)(2). See Wal-Mart, 131 S.Ct. at 2551; Iqbal, 129
S.Ct. at 1949; Twombly, 550 U.S. at 555. Under such circumstances, the court need not inquire
further as to whether Plaintiff has stated a plausible claim that she can meet the criteria of Rule
23(a)(1), (3) and (4) and the criteria of Rule 23(b)(1), (2), or (3). See Blades, 400 F.3d at 568-69.
As such, the court will grant Defendant’s Motion to Dismiss Count II.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Dismiss Count II filed by Defendant is
GRANTED; Doc. 7
IT IS FURTHER ORDERED that Count II of Plaintiff’s Complaint is DISMISSED,
without prejudice. Doc. 5, Count II.
/s/Mary Ann L. Medler
MARY ANN L. MEDLER
UNITED STATES MAGISTRATE JUDGE

Dated this 26th day of March, 2012.

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