Labor & Employment Law Daily Teacher who claimed retaliation after taking lactation breaks had no redress under FLSA, but FMLA claim survives
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Wednesday, October 2, 2019

Teacher who claimed retaliation after taking lactation breaks had no redress under FLSA, but FMLA claim survives

By Marjorie Johnson, J.D.

Her FMLA retaliation claim advanced since the suspicious timing of her first negative evaluation and the decision not to renew her contract, along with the principal’s recommendation that she not be promoted due to her maternity leave, plausibly suggested a causal connection at the pleadings stage.

A probationary teacher whose contract was not renewed following her discrimination complaints relating to her request for lactation breaks failed to state a plausible claim of FLSA retaliation since the statute’s protections for nursing mothers did not apply to her, she never mentioned the FLSA in any of her complaints, and she asserted rights that were protected by state law. However, a federal district court in Maine denied the school district’s motion to dismiss her FMLA retaliation claim since she alleged facts from which it could plausibly be inferred that when conflict with her peers emerged over her lactation breaks, the principal used her investigation as a basis for a pretextual performance review of an employee she believed had inappropriately been promoted after returning from her maternity leave (Swenson v. Falmouth Public Schools, September 27, 2019, Singal, G.).

Returns from maternity leave. In August 2015, the teacher was hired as a Response to Intervention (RTI) teacher for an elementary school. She worked without incident until January 2017, when she took maternity leave. Shortly before her return in August, the school principal completed her probationary teacher evaluation for the school year. She gave the teacher favorable scores but indicated that she should be kept on the second year of probation due to her maternity leave. Nevertheless, the district advanced her to her third year of probation.

Sought three daily lactation breaks. Upon her return, the teacher requested three daily breaks to pump breastmilk and/or nurse her child, who was being cared for at the onsite daycare program. The schedule that she provided to her team provided for 20-minute breaks every two to three hours. The principal asked if she could instead take two breaks per day during her lunch and planning times, but she declined, stating that the three breaks she proposed were necessary for her health and the proper care of her child.

Harassment by peers. She then received multiple inquiries from her team members about whether she intended to continue pumping/nursing once RTI with students commenced. She responded that she would try to schedule her breaks around the student schedule, but had a legal right to take breaks to express breast milk. She complained about the comments to the principal, who informed the team that she had a legal right to take pumping/nursing breaks and instructed them to cease any negative comments. Later in October, the teacher complained that the team had continued to make negative comments and the principal said that she would investigate.

Poor performance review. On November 2, the principal informed her that because the investigation into her complaint had revealed concerns about her performance, she would conduct a performance review with her the next day. The teacher expressed concern that the review was retaliation for her complaints of discrimination, but the principal replied that those were a separate matter. The principal then attempted to place her on an action plan, but her union contested it since she lacked prior history of poor performance. Afterwards, the teacher began receiving negative comments in classroom observations, was issued a coaching document, and received her first negative review in which most of her prior favorable ratings were downgraded to “improvement necessary.”

Non-renewal. That spring, the principal informed her that she was not recommending her for a continuing contract in the next school year. On May 9, the teacher told the superintendent that she believed the principal’s decision not to recommend her was retaliation for reporting concerns of discrimination and retaliation. Two days later, she received a letter from the superintendent confirming that her contract with the district would not be renewed. The teacher brought this lawsuit asserting several claims, and the district moved to dismiss her FLSA and FLMA claims.

No FLSA retaliation. Though Sec. 207 of the FLSA requires employers to “provide a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk,” this requirement did not apply here since another section of the FLSA provides that anyone employed as a “teacher in elementary or secondary schools” is exempt from Sec. 207’s maximum-hour protections. Moreover, her internal complaints never indicated that her legal right to take breaks to express breast milk were provided to her under the FLSA.

Alternate recourse. When the principal told her that she had a legal right to take pumping breaks and later stated she would investigate her complaints, those actions indicated that the school district had fair notice of a possible violation of the Maine Human Rights Act (MHRA). Because the MHRA provides a private right of action against retaliatory discharge of employees who report violations of Maine’s labor statutes, its anti-retaliation provision was clearly intended to protect the teacher from retaliation for her complaints while the FLSA was not. Thus, given her alternate recourse under the MHRA, the court granted dismissal of her FLSA retaliation claim.

FMLA claims advance. The teacher plausibly alleged a claim of FMLA retaliation, however, though it was “a close question” whether she sufficiently alleged a causal connection. Within three months of her return from maternity leave, she received her first negative performance review, and at the first possible opportunity the district chose not to renew her contract. The temporal proximity of these actions was not so close to her FMLA leave that they established a causal inference standing alone, but in combination with other facts they could.

When she returned to work, the principal gave her an evaluation which insinuated that due to her maternity leave, she should not be promoted to her third year of probation. From this statement, it could plausibly be inferred that when conflict with her peers emerged over her lactation breaks, the principal could have used her investigation as a basis for a “pretextual performance review” of an employee she believed had inappropriately been promoted after taking leave. Given the teacher’s favorable record before her FMLA leave, it was also plausible that the principal’s subsequent negative evaluations were pretext for not continuing her employment after she took FMLA leave.

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