Employment Law Daily Employee fired for job abandonment, not for requesting place to pump breast milk
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Wednesday, April 6, 2016

Employee fired for job abandonment, not for requesting place to pump breast milk

By Joy P. Waltemath, J.D. Terminating a nursing mother, which she alleged was retaliation for requesting a place to pump breast milk, was not unlawful, a federal district court in Illinois ruled, disposing of her claims on summary judgment. When the store manager (who was returning after FMLA childbirth leave) requested a transfer to a closer store, a voluntary demotion, and to work part-time, she did not indicate a need to pump breast milk upon her return. When she later did, her employer asked her to report to her original assigned store because it had two private offices she could use to pump. But the employee simply did not return to work, or call in, so her employer notified her that she had violated the attendance policy and waited another week until it finally terminated her for job abandonment. This did not violate FLSA Sec. 207(r) or the Illinois Nursing Mothers in the Workplace Act, nor constitute retaliation under Title VII, the Illinois Human Rights Act, or common law (Tolene v. T-Mobile USA, Inc., March 31, 2016, Lefkow, J.). Transition to new role. A few weeks before she was scheduled to return from FMLA leave following the birth of her child, the store manager for T-Mobile notified her district manager that she wanted to transfer to a closer store, work part-time, and take a voluntary demotion from her management position. But because she had to return to a same or similar position following FMLA leave, she was told the changes could not be processed until after she returned to work. She returned to work for a few days, including at least one day at a closer store. But she then informed her employer for the first time that she needed a place to pump breast milk at work. The very next day her employer responded that it was working to ensure she had “a private and clean space to pump until the transition into [her] new role.” Job abandonment. The available space turned out to be at her old store, which was further away, and to which she was then directed to report for work. But she did not come in or call, and after three days her employer sent her a letter advising that she had violated T-Mobile’s attendance policy. It invited her to respond if circumstances prevented her from working or from notifying the company of her absence. Although she admitted she received the letter, she did not respond. T-Mobile waited several more days before processing a job abandonment notice, after which the employee sued, alleging her discharge violated the FLSA, Title VII, and state statutory and common law. FLSA Sec. 207(r.) Although FLSA Sec. 207(r) requires employers to provide reasonable break times and a private place other than a bathroom to express breast milk, T-Mobile claimed there was no private right of action in the statute. The court disagreed, noting that Sec. 216(b)’s penalty provisions provide a private right of action for violations of all Sec. 207 violations—but those are limited to lost wages and overtime, liquidated damages, attorneys’ fees, and costs that result from the employer’s failure to provide an adequate space for lactation. Here, however, the employee received all pay that was due. She said she was seeking unpaid wages, but documentary evidence proved she had been paid her full-time manager salary even when she failed to report for work. As such, T-Mobile was entitled to summary judgment on the FLSA claim. Retaliation. Regardless of whether breastfeeding is protected activity, which the court did not address, it found T-Mobile entitled to summary judgment on the employee’s Title VII and IHRA retaliation claims. Finding she could not prove causation, the court merely assumed that there were two adverse employment actions: (1) having her part-time offer for the closer store “rescinded” and requiring her to report to her original store, and (2) being terminated. Part-time offer. The employee relied on circumstantial evidence, including what she characterized as suspicious timing of T-Mobile’s decision to rescind the part-time job offer to work at the closer store, and an allegedly pretextual reason—that the closer store would have to be retrofitted to provide her with a private space to pump—to show causation. But the timing between her request to pump and the decision to allegedly rescind her part-time job offer alone was not enough. It was undisputed that T-Mobile was attempting to accommodate her transfer and part-time requests by letting her work at the closer store, which unfortunately lacked a private space to pump, while her transfer request was being processed. Upon learning of her need to pump, T-Mobile asked her to report back to her original store in the meantime, since that store had two private offices where she could pump. She failed to show that this reason was pretextual; in fact it appeared to the court she simply failed to report to work, period, yet argued against summary judgment that the closer store could have made certain changes to accommodate her request—changes she never identified at the time. Because there was no suspicious timing and no pretextual reason for rescinding the part-time job offer and directing her to report to her original store, she failed to show causation. Termination. On her retaliatory termination claim, the employee argued that circumstantial evidence, again including suspicious timing and pretext, could show causation, but the court again found insufficient record evidence. Timing alone is generally not enough to survive summary judgment on a retaliation claim. Her claim that pretext was supported by evidence she was not “scheduled” at her original store was without merit; even though she was not on that store’s schedule, she was directed to report to her original store and failed to do so. She also argued that the instructions to report to the original store were unreasonable, but the court pointed out the reason she was asked to report there was so that T-Mobile could accommodate her request to pump. Nor could she show a similarly situated comparator. State law claims. Under the INMWA, an employer must make “reasonable efforts” to provide a place to express breast milk, and the court found T-Mobile had done so. Upon receiving her request, management told the employee it was working to ensure she had a private place to pump until she transitioned into her new role. When no space was immediately available at the closer store, she was instructed to report to her original store where two private spaces would be made available for her to pump. Nothing in the record suggested the employee raised any objection to the adequacy of that space or that the proposed accommodations would not have been sufficient; thus the INMWA was satisfied. To the court, the evidence showed that T-Mobile did not discharge the employee in retaliation for her request for a space to pump, but rather for her unexcused absences from work, which entitled T-Mobile to summary judgment on the common law retaliatory tort claim as well.

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