United States District Court, N.D. Indiana
GRETCHEN B. CARREL, on behalf of herself and all others similarly situated persons, Plaintiff,
MEDPRO GROUP, INC., Defendant.
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
Plaintiff, Gretchen B. Carrel, on behalf of herself and
others similarly situated, has brought this class action
against the Defendant, MedPro Group, Inc. (MedPro), asserting
a violation of the Family and Medical Leave Act (FMLA), 29
U.S.C. § 2614(a)(2). This matter is before the Court on
the Plaintiff's Motion to Certify Class Action on
Plaintiff's FMLA Claim (Pl.'s Mot.) [ECF No. 35]. For
reasons stated herein, the Court grants class certification.
is a healthcare malpractice insurance corporation
headquartered in Allen County, Indiana. (Compl. ¶ 2, ECF
No. 11.) For about 14 years, the Plaintiff worked for MedPro
and was subject to MedPro's Paid Time Off (PTO) policy.
The policy applicable to the Plaintiff stated, in relevant
Those employed on January 1 are entitled to their full PTO
accrual for the year based on years of service in that year.
[E]ligible . . . employees may carry over 10 PTO days per
Employees that separate employment will be paid accrued PTO
only (excluding carryover).
(Kem Decl., ECF No. 42-1.) MedPro also had a policy that
whenever an employee took short-term leave, including FMLA
leave, the employee could not accrue PTO. (Id.;
Pl.'s Mem. of Law in Supp. of Pl.'s Mot. 2, ECF No.
36.) The Plaintiff asserts that this latter policy violated
the FMLA because, each employee was provided PTO at the
beginning of the year according to MedPro's PTO policy
and thus, this PTO was unlawfully “docked”
whenever an employee took FMLA leave. In other words, the
Plaintiff argues that the practice of withholding
employees' PTO while an employee took FMLA is a violation
of the FMLA because PTO was already provided to employees at
the beginning of the year, pursuant to the MedPro PTO policy.
Because she claims she was docked earned PTO, the Plaintiff
further asserts that MedPro failed to pay her unused PTO upon
her departure from the Company. (Pl.'s Reply Br. 6, n.1,
ECF No. 45.)
the Plaintiff seeks double damages, costs, and attorney's
fees, pursuant to the FMLA. (Compl. ¶ 25.) At issue
here, the Plaintiff also asserts that MedPro's PTO and
FMLA policies were uniformly applicable across all employees
covered by the handbook and thus, numerous MedPro employees
were docked PTO. Therefore, the Plaintiff seeks certification
of a class related to the claims set forth in her Complaint.
of a class is only proper if the class meets all of the
requirements of Federal Rule of Civil Procedure 23(a) and one
of the requirements of Rule 23(b). See Fed. R. Civ.
P. 23; Rosario v. Livaditis, 963 F.2d 1013, 1017
(7th Cir. 1992). Rule 23(a) is satisfied if:
(1) the class is so numerous that joinder of all members is
(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. P. 23(a)(1)-(4); Kress v. CCA of Tenn.,
LLC, 694 F.3d 890, 892-93 (7th Cir. 2012).
of these prerequisites are met, the Court must also find that
at least one of the subsections of Rule 23(b) is satisfied.
As relevant here, Rule 23(b)(3) is satisfied if:
(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
(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.
Fed. R. Civ. P. 23(b)(3); Harper v. Sheriff of Cook
Cty., 581 F.3d 511, 513 (7th Cir. 2009).
plaintiff who fulfills both conditions of Rule 23 is entitled
to class certification. See Shady Grove Orthopedic
Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398
(2010) (“[Rule 23] creates a categorical rule entitling
a plaintiff whose suit meets the specified criteria to pursue
his claim as a class action.”). However, Rule 23
“does not set forth a mere pleading standard”;
rather, a plaintiff “must affirmatively demonstrate his
compliance with the Rule [and] be prepared to prove”
its requirements. Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 350 (2011). In deciding whether Rule 23 has
been satisfied, the district court undertakes “a
rigorous analysis” by making the necessary factual and
legal inquiries. Id.; Szabo v. Bridgeport
Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001). This
analysis may require some overlap with the merits of the
Plaintiff's underlying claim. Dukes, 564 U.S. at
Plaintiff seeks to certify a class of individuals defined as
“all current and former MedPro employees who took FMLA
leave at any point since March 29, 2013[.]” (Pl.'s
Mot. ¶ 11.) The Plaintiff clarifies that this class
should include “only those employees who actually had
their PTO docked.” (Pl.'s Reply Br. 2, 5.) The
Plaintiff asserts that this class has satisfied the
requirements of Rule 23(a)(1)-(4) with respect to numerosity,
commonality, typicality, and adequacy of representation, and
has also satisfied Rule 23(b)(1)(3). Additionally, the
Plaintiff requests that Matthew Elliot of Beckman Lawson, LLP
be appointed counsel for the class.
Defendant maintains that the Plaintiff has failed to satisfy
the Rule 23(a) requirements. Most of the Defendant's
challenges derive from the purported lack of uniformity of
the Plaintiff's allegations with those of the class and
the alleged individualized nature of the claims. For example,
the Defendant argues that the Plaintiff's claims do not
meet the commonality and typicality requirements because
three different employee handbooks governed the time period
at issue, while only one handbook was applicable to the
Plaintiff, and MedPro employees took different periods of
respect to the Rule 23(b) requirements, the Defendant
contends that the Plaintiff cannot demonstrate that there is
a common question of law predominating over the class because
each employee used up a different amount of PTO during
his/her employment. Further, the Defendant argues that
whether these employees would have used more PTO is a
subjective and individualized analysis inappropriate for
Rule 23 - Applicability
addition to its arguments against class certification
pursuant to Rule 23, the Defendant argues that Rule 23 is the
wrong mechanism for an FMLA class, contending instead that
the alleged class violations of the FMLA must be treated as
collective actions. Though the Defendant argues this as an
alternative to its argument that the Plaintiff cannot fulfill
the Rule 23 requirements, the Court will first examine
whether Rule 23 is, in fact, the correct method by which to
analyze the remainder of the Plaintiff's Motion because
whether Rule 23 applies has the potential to impact the
Defendant relies upon a Northern District of Texas case in
which the court pointed to the nearly identical statutory
language of the FMLA enforcement provision, 29 U.S.C. §
2617(a)(2), and the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 216(b), to hold that
an FMLA claim on behalf of other similarly situated
individuals must proceed in the same manner as an FLSA opt-in
collective action. Clary v. Sw Airlines, No.
3:07-C-126-P, 2007 WL 4947690, at *1-2 (N.D. Tex. Dec. 17,
2007). Thus, the Clary court held that the Rule 23
class action is inappropriate for FMLA claims. Id.
Furthermore, the Defendant quotes the FMLA's legislative
history, arguing that the enforcement scheme of the FMLA was
intended to be identical to that of the FLSA. Finally, the
Defendant notes that courts interpreting the FMLA frequently
track FLSA interpretations on employment-law related issues,
including anti-retaliation provisions, investigative
authority, available relief, and the definition of an
the Defendant is correct that the Seventh Circuit has not
weighed in on the applicability of Rule 23 to FMLA actions,
courts within the Circuit have analyzed arguments similar, if
not identical, to those posed by the Defendant and rejected
them. See Butler v. Ill. Bell Tel. Co., No.
06-C-5400, 2008 WL 474367 (N.D. Ill. Feb. 14, 2008); Loy
v. Motorola, Inc., No. 03-C-50519, 2004 WL 2967069 (N.D.
Ill. Nov. 23, 2004). The courts in Butler and
Loy held that class violations of the FMLA must be
treated as opt-out actions pursuant to Rule 23 because the
statutory language of the FMLA § ...