Refuerzo v. Southwest Airlines Co.

Background

Plaintiffs brought a proposed class action against Southwest Airlines Co., alleging that Southwest penalized flight attendants for using leave protected by the Family and Medical Leave Act (FMLA). Southwest uses an attendance-point system under which flight attendants can reduce disciplinary points through record-improvement mechanisms. Plaintiffs alleged that, beginning in March 2019, Southwest disqualified flight attendants who used intermittent FMLA leave from those point reductions.

Plaintiff Roreste Refuerzo alleged that using intermittent FMLA leave caused him to lose a two-point reduction, and that Southwest later terminated him after assessing additional points. Plaintiff Cashin alleged that Southwest denied her record-improvement eligibility after she used approved intermittent FMLA leave. Plaintiffs sought class certification for claims of FMLA interference, wrongful termination, and unfair competition.

Railway Labor Act Preemption and Standing

The court rejected Southwest’s argument that the Railway Labor Act preempted the claims. The court explained that the claims arose from rights created by the FMLA and the California Family Rights Act, rather than from the collective bargaining agreement. The court also concluded that the claims did not substantially depend on interpreting the agreement, so the court retained subject-matter jurisdiction.

Southwest challenged Cashin’s standing to represent the proposed injunctive-relief classes. The court found that Cashin had standing because she alleged and supported with evidence that she lost record-improvement eligibility after taking FMLA leave and continued to face a deterrent effect from Southwest’s policy.

Class Certification

The court applied Federal Rule of Civil Procedure 23, which requires proposed classes to satisfy requirements including sufficient size, common legal or factual questions, typical claims by the representatives, and adequate representation. The court found those requirements met for the following classes:

- (b)(2) Nationwide Injunctive Relief Class: Southwest flight attendants based in the United States since March 1, 2019, through the present, who exercised family and medical leave rights and consequently lost access to a disciplinary-point reduction. - (b)(2) California Subclass: Southwest flight attendants based in California since March 1, 2019, through the present, who exercised family and medical leave rights and consequently lost access to a disciplinary-point reduction. - (b)(3) Nationwide Damages Class: Southwest flight attendants based in the United States since March 1, 2019, through the present, who exercised family and medical leave rights, consequently lost access to a disciplinary-point reduction, and were later terminated for accumulating disciplinary points.

For the nationwide damages class, the court found that the plaintiffs identified at least 29 potential class members, enough to satisfy the numerosity requirement in this case. The court also found that the common question—whether Southwest’s uniform policy penalized the exercise of FMLA rights—could be resolved with common evidence, including Southwest’s records. Individual questions about damages did not defeat certification.

The court denied certification of the (b)(3) California Subclass because the plaintiffs did not establish that it was sufficiently numerous. The court stated that each subclass must independently satisfy Rule 23.

The court certified the two injunctive-relief classes under Rule 23(b)(2), finding that Southwest’s policy applied generally to the classes and that declaratory or injunctive relief addressing the policy could apply across the classes. It certified the nationwide damages class under Rule 23(b)(3), finding that common questions predominated and that a class action was the superior method for resolving the claims.

Disposition

The court granted the motion for class certification as to the (b)(2) Nationwide Injunctive Relief Class, the (b)(2) California Subclass, and the (b)(3) Nationwide Damages Class. It denied the motion as to the (b)(3) California Subclass for failure to establish numerosity. The court appointed Andrus Anderson LLP and Erlich Law Firm, P.C. as class counsel and set further case-management deadlines.

The opinion contains an apparent internal error: one sentence in the discussion refers to certification of the “(b)(3) Nationwide Injunctive Relief Class,” but the opening, conclusion, and class definitions identify the certified class as the “(b)(3) Nationwide Damages Class.”