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Wilkinson v. Greater Dayton Regional Transit Authority

United States District Court, S.D. Ohio, Western Division

August 17, 2017

MICHELE WILKINSON, et al., On behalf of themselves and others similarly situated, Plaintiffs,
v.
GREATER DAYTON REGIONAL TRANSIT AUTHORITY, Defendant.

         DECISION AND ENTRY OVERRULING PLAINTIFFS MICHELE WILKINSON, DELLA AYDELOTT, SHALONDA EGLER AND DOUG STAUTER'S THIRD AMENDED MOTION FOR CLASS CERTIFICATION AND APPOINTMENT OF CLASS COUNSEL (DOC. #190); NAMED PLAINTIFFS AND DEFENDANT GREATER DAYTON REGIONAL TRANSIT AUTHORITY SHALL FILE A MODIFIED SCHEDULING ORDER AS TO THE INDIVIDUAL CLAIMS OF THE NAMED PLAINTIFFS WITHIN TWENTY-ONE DAYS OF THIS ENTRY; SCHEDULING CONFERENCE CALL SET FOR SEPTEMBER 14, 2017, AT 10:00 A.M.

          WALTER H. RICE, UNITED STATES DISTRICT JUDGE.

         Plaintiffs Michele Wilkinson, Delia Aydelott, Shalonda Egler and Doug Stauter (collectively "Plaintiffs" or "Named Plaintiffs"), on behalf of themselves and other similarly situated employees, filed suit against Greater Dayton Regional Transit Authority ("GDRTA" or "Defendant"), alleging violations of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq. They seek declaratory and injunctive relief, along with compensatory and liquidated damages. Before the Court is Plaintiffs' Third Amended Motion for Class Certification and Appointment of Class Counsel ("Motion"). Doc. #190. Counsel have waived the opportunity for oral argument. For the reasons set forth below, the Court OVERRULES Plaintiffs' Motion.

         I. BACKGROUND AND PROCEDURAL HISTORY

         The FMLA was enacted to "balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity" and to "entitle employees to take reasonable leave for medical reasons." 29 U.S.C. § 2601(b)(1-2). Under the FMLA, "an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period . . . [b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612 (a)(1)(D). Employers may require FMLA leave requests to be supported by sufficient medical certification from a health care provider, and may require subsequent recertifications on a reasonable basis. 29 U.S.C. § 2613(a-b, e).

         The Sixth Circuit has recognized two theories of recovery under the FMLA. An "entitlement" or "interference" claim arises under 29 U.S.C. § 2615(a)(1), which makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under [the FMLA]." A "retaliation" or "discrimination" claim arises under 29 U.S.C. § 2615(a)(2), which prohibits employers from discharging, or otherwise discriminating against, individuals who oppose unlawful FMLA practices. Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 244 (6th Cir. 2004). Claims for violations of the FMLA must be asserted within two years after the date of the alleged violation. However, the statute of limitations is extended to three years if an employee can prove that employer's violation of the statute was willful. See 29U.S.C. §2617(c)(1-2).

         In their Second Amended Complaint in Class Action, their last complaint ("Second Amended Complaint"), Doc. #79, Plaintiffs allege that GDRTA, in response to what it perceived as "rampant absenteeism" among its employees, implemented more stringent policies regarding appropriate verification for use of sick leave and FMLA leave. Id., ¶ 133, PAGEID #1382. GDRTA enacted a new Absence Control Policy in January of 2008, and revised its FMLA policy in March of 2009. Enforcement of these policies (collectively the "Uniform Policies") achieved the desired effect; there was a marked drop in absenteeism. Doc. #190, PAGEID #5961-63 (citations omitted).

         Plaintiffs claim that the Uniform Policies' requirements are more onerous than what is allowed under the FMLA and its regulations, and are designed to discourage employees from taking lawful, protected FMLA leave. More specifically, Plaintiffs allege that GDRTA wrongfully:

(1) Requires employees to be absent before allowing them to apply for FMLA leave;
(2) Requires employees to complete a Request for FMLA leave form before allowing them to obtain a medical certification form;
(3) Routinely finds medical certifications to be "incomplete" or "insufficient";
(4) Refuses to accept foreseeable leave notifications, instead requiring employees to take a chargeable absence until eligibility for FMLA leave is established;
(5) Requires employees to recertify intermittent FMLA leave within the twelve-month period;
(6) Requires employees to obtain second and third medical opinions, when there is no reason to doubt the validity of the medical certification presented;
(7) Contacts employees' health care providers for improper purposes;
(8) Sends employees to doctors whose services GDRTA regularly uses for second opinions;
(9) Refuses to pay for reasonable out-of-pocket expenses incurred in obtaining second and third opinions; and
(10) Improperly accounts for FMLA absences.

Doc. #79, ¶ 133, PAGEID #1382. Plaintiffs further allege that GDRTA retaliates against employees who attempt to exercise their rights under the FMLA, by subjecting them to discipline, suspension, and termination, and by harassing and intimidating them. Id., ¶134, PAGEID #1382-83.

         On January 21, 2016, the Named Plaintiffs filed the instant Motion. Doc. #190. Pursuant to Federal Rule of Civil Procedure 23(b)(2), Plaintiffs move that the Court certify the following class:

[C]urrent and former employees of Defendant who were "eligible" within the meaning of 29 U.S.C. §2611(2)(A), and who applied for, and were denied, disciplined, terminated or otherwise had their rights under the FMLA interfered with or who were retaliated against for their exercise of rights under the FMLA.

Doc. #190, PAGEID #5966.

         Plaintiffs also move that the Court certify the following five subclasses:

Subclass 1: All current and former employees of Defendant who were "eligible" within the meaning of 29 U.S.C. § 2611(2)(A) during the applicable limitations period, whose medical certifications were found insufficient and whose rights under the FMLA were denied and/or restrained.
Subclass 2: All current and former employees of Defendant who were "eligible" within the meaning of 29 U.S.C. § 2611 (2)(A) during the applicable limitations period, and were terminated, disciplined, or otherwise suffered adverse employment actions based upon discipline and/or termination under Defendant's absenteeism policy where the exercise of rights under the FMLA was interfered with or denied.
Subclass 3: All current and former employees of Defendant who were "eligible" within the meaning of 29 U.S.C. § 2611(2)(A) during the applicable limitations period, and were required to obtain re-certification for intermittent FMLA leave within the twelve month period where the healthcare provider set forth a minimum period of time in the original medical certification and the condition forming the basis of FMLA leave [had] not changed.
Subclass 4: All current and former employees of Defendant who were "eligible" within the meaning of 29 U.S.C. ยง 2611(2)(A) during the applicable limitations period, and were required to obtain a second and/or third opinion without a reason to doubt the validity of the medical certification; were not previously approved for leave pending the second opinion process; had second or third opinions performed by healthcare providers regularly used by Defendant; or were not provided a copy ...

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