Myers et al v. Marietta Memorial Hospital

Filing 251

ORDER granting in part and denying in part 249 Motion to Consolidate Cases. Myers & Butler (17-CV-438), Weckbacher (16-CV-1187), and Booth (17-CV-439)have sufficient relationship that the elements of Rule 42 are met and are consolidated. Myers, et al (15-CV-2956) is not consolidated. Signed by Judge Algenon L. Marbley on 6/3/2019. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LYNNETT MYERS, et al.,

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Plaintiffs,
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v.
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MEMORIAL HEALTH SYSTEM
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MARIETTA MEMORIAL HOSPITAL, et al,:
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Defendants.
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LYNNETT MYERS & CAROL BUTLER,
Plaintiffs,
v.
MEMORIAL HEALTH SYSTEM
MARIETTA MEMORIAL HOSPITAL,
Defendant.
KIM WECKBACHER,
Plaintiff,
v.
MEMORIAL HEALTH SYSTEM
MARIETTA MEMORIAL HOSPITAL,
Defendant.
JOSH BOOTH,
Plaintiff,
v.
MEMORIAL HEALTH SYSTEM
MARIETTA MEMORIAL HOSPITAL,
Defendant.

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Case No. 2:15-CV-2956
JUDGE ALGENON L. MARBLEY
Magistrate Judge Chelsey M. Vascura

Case No. 2:17-CV-438
JUDGE ALGENON L. MARBLEY
Magistrate Judge Chelsey M. Vascura

Case No. 2:16-CV-1187
JUDGE ALGENON L. MARBLEY
Magistrate Judge Chelsey M. Vascura

Case No. 2:17-CV-439
JUDGE ALGENON L. MARBLEY
Magistrate Judge Chelsey M. Vascura

OPINION & ORDER
I.

Background

These are four related cases before this Court: 15-2956, Myers et al. v. Marietta Hospital,
et al., (“the class case”); 16-1187, Weckbacher v. Marietta Hospital (“Weckbacher”), 17-438,
Myers & Butler v. Marietta Hospital (“Myers & Butler”); and 17-439, Booth v. Marietta
Hospital (“Booth”). The class case is a collective action brought by nurses who are and were
employed by Defendant hospital. The other three cases are brought by plaintiffs who are
members of that collective action, alleging retaliation in violation of the Fair Labor Standards
Act (“FSLA”). These three cases are collectively referred to as “the retaliation cases.”
This Court recently decided Motions for Summary Judgment in these cases. In the class
case, this Court granted Plaintiffs’ Motion to add Defendants Cantley and Young in their
individual capacities, and denied Plaintiffs’ Motion for Summary Judgment, finding that genuine
disputes of material fact remain. (ECF Nos. 246, 247). In Myers & Butler, Weckbacher, and
Booth, this Court denied Defendants’ Motions for Summary Judgment for the same reason.
(Myers & Butler, ECF Nos. 30, 31; Weckbacher, ECF No. 29; Booth, ECF No. 23).
This Court took notice that these four cases involve the same parties, and the material
facts that remain in genuine dispute have substantial overlap across the four cases and involve
largely the same set of events. Accordingly, this Court held a telephonic status conference on
April 9, 2019 at 3:00 PM. The parties were asked to be prepared to discuss Fed. R. Civ. P. 42.
The parties’ positions are memorialized in a Joint Motion and Notice submitted by the parties.
(The class case, ECF No. 249; Myers & Butler, ECF No. 33; Booth, ECF No. 25; Weckbacher,
ECF No. 31).

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Plaintiffs support consolidating Myers & Butler, Weckbacher, and Booth – the retaliation
cases – but not consolidating those three cases with the class case. Defendants do not support any
consolidation of these matters.
For the reasons below, this Court hereby orders consolidation of the retaliation cases –
Myers & Butler, Weckbacher, and Booth – but does not consolidate these cases with the class
case.
II.

Law & Analysis

Under Federal Rule of Civil Procedure 42(a), if actions before a court involve a common
question of law or fact, the court has the discretion to:
1. join for hearing or trial any or all matters at issue in the actions;
2. consolidate the actions; or
3. issue any other orders to avoid unnecessary cost or delay.
There need not be “complete identity of legal and factual issues posed in the cases which are the
subject of the request.” J4 Promotions, Inc. v. Splash Dogs, LLC, 2010 WL 3063217, at *1 (S.D.
Ohio Aug. 3, 2010). The underlying objective of consolidation “is to administer the court’s
business with expedition and economy while providing justice to the parties.” Advey v. Celotex
Corp., 962 F.2d 1177, 1180 (6th Cir. 1992) (internal quotation marks and citation omitted). The
Court must take care “that consolidation does not result in unavoidable prejudice or unfair
advantage.” Cantrell v. GAF Corp., 999 F.2d 1007, 1011 (6th Cir. 1993). If the conservation of
judicial resources achieved through consolidation “are slight, the risk of prejudice to a party must
be viewed with even greater scrutiny.” Id. See also Linihan v. Food Concepts Int’l, LP, 2016 WL
759884, at *1–2 (S.D. Ohio Feb. 26, 2016).
As this Court found in the three retaliation cases, there remains a genuine dispute of fact
about what Defendant hospital knew about the protected activities of the plaintiffs, and when the
hospital gained that knowledge. For example, as this Court detailed in its earlier order (Booth,

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ECF No. 23), Plaintiff Booth worked with his supervisor to “flex down” his work schedule to
create shifts that would work better for him and his family, including his daughter who had
recently been diagnosed with autism. He later signed a consent-to-join the collective action.
Sometime after having signed the consent-to-join, Booth was told that the “flex down” position
was no longer available; he was permitted to apply for a per diem position, but this position did
not offer health care. Booth alleges this was in retaliation for his signing the consent-to-join,
while the Defendant hospital argues they had no notice that Booth had agreed to join the
collective action. Therefore, the jury will need to determine, inter alia, when Defendant hospital
gained the requisite knowledge of Booth’s protected activities, and whether there was a sufficient
causal connection between Booth’s activities and what he argues was retaliation by Defendant
such that there was a violation of the FLSA.
Similarly, Plaintiff Weckbacher signed her consent-to-join the collective action ten days
before she was fired by Defendant hospital; she had worked there for twenty-one years. In her
deposition, Weckbacher also said she had been discussing with other nurses the Defendant’s
lunch deduction policy. Defendant argued they did not have the requisite knowledge of her
protected activities. (Weckbacher, ECF No. 29). The jury will need to determine, inter alia, when
Defendant hospital knew of Weckbacker’s protected activities, and whether there was sufficient
casual connection so as to violate the FLSA.
Plaintiff Myers and Plaintiff Butler brought their retaliation suit together. Plaintiff Butler
had complained to her supervisors on multiple occasions about Defendant’s automatic lunch
deduction policy. She had submitted her resignation paperwork to the hospital and was prepared
to take a position with Jackson Nursing before her recruiter told her that Jackson could no longer
hire anyone from Marietta. (Myers & Butler, ECF Nos. 30, 31). Although Butler also bring a

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tortious interference claim, the questions that will need to be resolved in her case – what did
Defendant know of her protected activities, when did they gain that knowledge, and was there a
sufficient causal connection – are the same as those that need resolving in Booth’s and
Weckbacher’s cases. The same is true for Plaintiff Myers: she was told she could no longer take
the position with Jackson Nursing after she had submitted her notice to Marietta. The same
questions will need to be resolved in her case.
Reviewing these facts, this Court finds that these four plaintiffs’ claims involve many of
the same questions of law, and determining the disputed facts would be accomplished with more
alacrity if the cases were consolidated. In addition, consolidating these three similar cases avoids
the risk of preclusion, whereby one party’s adverse finding bars subsequent similarly situated
parties from mounting their own thorough argument or defense.
This Court acknowledges the arguments of the parties that the class case is both different
in kind and at a different stage of the litigation from the retaliation cases. As a result, this Court
finds that consolidating the class case with the retaliation cases would not be what Rule 42
imagines and would not bring economy and clarity to the proceedings.
Therefore, because consolidating the retaliation cases will allow for “expedition and
economy while providing justice to the parties,” Advey, supra, and will reduce the risk of a
preclusive finding in the first case to go to trial, this Court hereby finds that the requirements of
Rule 42 have been met. The retaliation cases – Weckbacher, Booth, and Myers & Butler – are
hereby consolidated and may be set for trial. The class case – Myers, et al. – is not consolidated
with the other cases.
IT IS SO ORDERED.
s/Algenon L. Marbley ___________
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: June 3, 2019

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