By Brandi O. Brown, J.D.
A fire department employee who alleged she was not provided with required, appropriate space to pump breastmilk in each of the stations where she was assigned while lactating will proceed with some, but not all, of her FLSA and Title VII claims, a federal district court in Arizona concluded. Genuine issues of material fact existed with regard to several matters, including whether there were appropriate lactation spaces. However, the court granted the motion as to certain claims based on allegations of a hostile work environment and loss of overtime opportunities. The employer’s motion for summary judgment was granted in part (Clark v. City of Tucson, April 24, 2018, Jorgenson, C.).
Suitable space? According to the Tucson Fire Department employee, after the birth of her first child she struggled to find appropriate places to express breastmilk in the various stations to which she was assigned. She alleged she was retaliated against after she complained about the problem. She filed suit, claiming she was discriminated against based on her sex in violation of 29 U.S.C. sec. 207(r) and Title VII and retaliated against in violation of 29 U.S.C. sec. 215 and Title VII. The employer moved for summary judgment and the employee filed a cross-motion. Under 29 U.S.C. sec. 207, as amended, employers must provide suitable spaces for nursing mothers, for up to one year after the birth of a child. There are requirements for that space—according to the statute it should “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public.” The employee claimed that the stations to which she was assigned did not satisfy those requirements, nor did the employer have a policy or procedure in place for mothers needing to express milk.
Indeed, the employer’s Equal Opportunity Programs Division determined that only nine of the department’s 21 fire stations complied with the FLSA, although the division noted that all had rooms that would be compliant with a lock on the door. Making matters worse, the employee argued, she was not assigned to a single station upon her return. Instead, she was placed on a “swing shift” and several of the stations to which she was assigned were noncompliant. She alleged that she had to use sick leave to avoid working at those stations.
Fact questions about suitability. Although the employee argued she was entitled to summary judgment because the employer had admitted it did not comply with the statute, the court found genuine issues of material fact with regard to whether the stations to which she was assigned violated the FLSA. The EOPD report suggested the noncompliant stations did have a private space, the court noted. Although the employee argued those spaces needed a lock in order to be compliant, Department of Labor regulations indicated that there was more than one way to provide appropriate space. The department’s regulation regarding reasonable break time for nursing mothers stated that “the employer must ensure the employee’s privacy through means such as signs that designate when the space is in use, or a lock on the door.” And the regulations provide other information about what might constitute an acceptable space. The compliance of each of the stations, in light of that variation, was a question of fact and summary judgment was not appropriate, the court concluded.
Lost wages. Secondary to that, the court explained, the employer’s motion for summary judgment regarding the employee’s claim of lost wages (based on using up leave hours that she otherwise could have cashed in) should also be denied. Although there was limited case law on the legal question of whether the employee has a private right of action for lost wages under 29 U.S.C. 207(r), what did exist led the court to conclude that such a right may exist. In this case, the employer conceded that it compensated nursing mothers during break times and any vacation or sick time the employee used would have also constituted work time spent. Thus, the employee stated a viable claim for unpaid minimum wages. However, there were questions of fact and the court concluded that a reasonable juror could find for either party. Thus, it denied summary judgment.
Retaliation. The employee also contended that the employer retaliated against her after she reported her belief the employer was not complying with federal law. According to the employee she was assigned to Station 6, although she had formally requested placement at a different station. When she asked about it, the Assistant Chief told her, “well, that’s what happens when you file a complaint with EEO.” The employer, apparently, conceded that the Assistant Chief made that statement, although it argued that it was not the smoking gun the employee believed it was because it was made after the assignment. However, the court agreed with the employee that the statement satisfied her initial burden of proof.
The employee also demonstrated that her status as a lactating mother was a substantial factor in the assignment decision and she viably argued that the move was pretext by pointing out that the employer could just as easily have installed a lock on the door in one station as in the other. Some of the employee’s retaliation claims under Title VII also survived, including claims based on disciplinary action and involuntary transfer after her protected activities. However, the court granted summary judgment to the employer on the employee’s other claims of retaliation under Title VII.
PDA claim. Finally, the court granted only in part the employer’s motion with regards to the employee’s sex discrimination claims under Title VII, based on her status as a lactating mother under the Pregnancy Discrimination Act. Specifically, whether the employer’s delay in addressing her need for appropriate lactation space, its refusal to place her at the station she requested, its arbitrary enforcement of certain assignment rules, the inflammatory comments made by supervisors, and disciplinary measures taken against the employee constituted discrimination presented a material factual question that could not be decided as a matter of law.
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