Lampkins v. Mitra QSR, LLC et al
Filing
182
MEMORANDUM OPINION Signed by Judge Colm F. Connolly on 6/4/2019. (nmf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
AUTUMN LAMPKINS,
Plaintiff,
v.
Civil Action No. 16-647-CFC
:rvo:TRA QSR KNE, LLC,
Defendant. :
Patrick C. Gallagher, Raeann Warner, JACOBS & CRlJ1\1PLAR, P.A.,
Wilmington, Delaware
Counsel for Plaintiff
Richard A. Barkasy, Daniel M. Pereira, SCHNADER, HARRISON, SEGAL &
LEWIS LLP, Wilmington, Delaware; Jo Bennett, Samantha Banks, SCHNADER,
HARRISON, SEGAL & LEWIS LLP, Philadelphia, Pennsylvania
Counsel for Defendant
MEMORANDUM OPINION
June 4, 2019
Wilmington, Delaware
COL
UNITED STATES
.CONNOLLY
TRICT JUDGE
The Court held a five-day jury trial in this employment discrimination case
filed by Plaintiff Autumn Lampkins against Defendant Mitra QSR KNE, LLC.
The jury found that Mitra unlawfully discriminated against Lampkins on the basis
of her sex by demoting her and cutting her hours because she was lactating. 1 The
jury also found that (1) Mitra unlawfully subjected Lampkins to a hostile work
environment because she was lactating and (2) Mitra's hostile work environment
resulted in Lampkins' demotion, reduction in work hours, and constructive
discharge. The jury awarded Lampkins $25,000 in compensatory damages and
$1,500,000 in punitive damages.
Pending before me is Mitra's renewed motion for judgment as a matter of
law under Rule 50(b) of the Federal Rules of Civil Procedure (FRCP) and for a
new trial under FRCP 59(a). D.I. 168. Mitra seeks by its motion entry of a
1
Title VII, 42 U.S.C. § 2000e et seq., prohibits various forms of discrimination,
including discrimination "because of sex" and "on the basis of sex." 42 U.S.C.
2000e-2(a) & (b). The Pregnancy Discrimination Act of 1978 (PDA), 42 U.S.C. §
2000e(k), amended Title VII to define "because of sex" and "on the basis of sex"
as including "because of or on the basis of pregnancy, childbirth, or related
medical conditions." 42 U.S.C. § 2000e(k). Lactating is a medical condition
related to pregnancy and therefore "discriminating against a woman who is
lactating or expressing breast milk violates Title VII and the PDA." EEOC v.
Hous. Funding IL Ltd., 717 F.3d 425,430 (5th Cir. 2013).
judgment in its favor on Lampkins' hostile work environment and punitive
damages claims or, in the alternative, a new trial on those claims. Mitra further
seeks a new trial on Lampkins' disparate treatment claims. Finally, Mitra requests
that in the event I deny its requests for judgment as a matter of law and a new trial,
I reduce the jury's punitive damages award "to comport with constitutional limits
and Title VII's statutory damages cap." Id. at 2.
I.
INTRODUCTION
Lampkins alleged three counts in the operative complaint (her First
Amended Complaint): sex discrimination (i.e., disparate treatment2) (Count I) and
creating and/or allowing a hostile work environment (Count II) in violation of Title
VII, and failure to provide accommodations and opportunities to express breast
milk (Count III) in violation of the Fair Labor Standards Acts (FLSA), 29 U.S.C. §
207(r). Before trial, I granted in part Mitra's summary judgment motion and
dismissed the FLSA count. See DJ. 101.
Lampkins presented at trial two theories of disparate treatment liability and
eight theories of hostile work environment liability. Specifically, Lampkins argued
that ( 1) Mitra unlawfully discriminated against her by demoting her; (2) Mitra
unlawfully discriminated against her by reducing her work hours; (3) her
2
Following the parties' lead, I will refer to Lampkins' discrimination claims as
disparate treatment claims. See, e.g., D.I. 122 Gointly filed proposed jury
instructions) at 33, 3 6.
2
supervisors created and subjected her to a hostile work environment; (4) her
coworkers created and subjected her to a hostile work environment; (5) a hostile
work environment created by her supervisors resulted in her demotion; (6) a hostile
work environment created by her coworkers resulted in her demotion; (7) a hostile
work environment created by her supervisors resulted in a reduction in her work
hours; (8) a hostile work environment created by her coworkers resulted in a
reduction in her work hours; (9) a hostile work environment created by her
supervisors resulted in her constructive discharge; and (10) a hostile work
environment created by her coworkers resulted in her constructive discharge.
At Lampkins' insistence, I instructed the jury (albeit reluctantly) on all ten of
these theories. 3 The verdict sheet agreed to by the parties did not distinguish
between supervisor and coworker liability, thus reducing the claims adjudicated by
the jury to six in number (i.e., combining theories (3) with (4), (5) with (6), (7)
with (8), and (9) with (10)). The jury found in Lampkins' favor on all six claims.
3
I expressed on numerous occasions during trial my concern that Lampkins'
insistence on presenting so many liability theories would inevitably confuse the
jury. See, e.g., Tr. 1077:10-23 ("THE COURT: I just think this is part of the
problem. There's this conflation of theories of liability and you're trying to have
[your] cake and eat it, too. You're making it every single liability theory you can,
putting them all in a pot and all mixed up. . . . And because you want to instruct
these jurors on all of these theories conflated together, it's not manageable. It's not
fair to them. It's a mess.").
3
In light of the circumstances which gave rise to Lampkins' claims, one
would have expected the case to be simple and straightforward. Lampkins worked
for Mitra less than five months. Her claims implicate the conduct of only two
supervisors and a half dozen coworkers in two small fast food restaurants. The
demotion and cut in hours about which she complains resulted from a single
episode-Mitra's decision in the seventh week of Lampkins' employment to
transfer her to a smaller store. The demotion resulted in a cut in her hourly pay
from $10.50 to $10.00.
The case, however, has prov~d to be anything but simple and
straightforward, principally because throughout the litigation Lampkins conflated
her disparate treatment and hostile work environment Title VII claims with each
other and also with her FLSA claim. For its part, Mitra is not without blame, as it
acceded in large part to Lampkins' conflation of theories until it was too late and
never (including in its post-trial briefing) brought to the Court's attention case law
from this District (and other courts) that, had the Court been aware of it, would
have simplified the case long ago. 4 But putting aside the question of fault for
creating the situation, I am convinced that the conflation of claims and theories of
4 See,
e.g., Parker v. State ofDel. Dep't ofPub. Safety, 11 F. Supp. 2d 467,476 (D.
Del. 1998) (refusing to allow plaintiff to base hostile work environment claim on
same discrete acts that formed basis of disparate treatment claim); Diggs v. Potter,
700 F. Supp. 2d 20, 51 (D.D.C. 2010) (same); Rattigan v. Gonzales, 503 F. Supp.
2d 56, 81 (D.D.C. 2007) (same).
4
liability undoubtedly confused the jury, unfairly prejudiced Mitra, and, because
Mitra is entitled to judgment as a matter of law on Lampkins' hostile work
environment claims, necessitates a new trial.
II.
LEGAL STANDARDS
A.
Judgment as A Matter of Law
"If the court does not grant a motion for judgment as a matter of law made
under Rule 50(a) ... the movant may file a renewed motion for judgment as a
matter of law and may include an alternative or joint request for a new trial under
Rule 59." Fed. R. Civ. P. 50(b). Upon a Rule 50(b) motion, a jury verdict should
be overturned "only if, viewing the evidence in the light most favorable to the
nonmovant and giving it the advantage of every fair and reasonable inference,
there is insufficient evidence from which a jury reasonably could find liability."
Fultz v. Dunn, 165 F.3d 215,218 (3d Cir. 1998) (internal quotation marks and
citation omitted).
B.
New Trial
Rule 59(a) permits a district court judge, "on motion," to grant a new trial
"for any reason for which a new trial has heretofore been granted in an action at
law in federal court." A new trial may be granted when the verdict is contrary to
the evidence, where a miscarriage of justice would result if the jury's verdict were
to stand, or when the court believes the verdict results from confusion. Brown v.
5
Nutrition Mgmt. Servs. Co., 370 F. App'x 267,270 (3d Cir. 2010); see also Nissholwai Co. v. Occidental Crude Sales, Inc., 729 F.2d 1530, 1538 (5th Cir. 1984) ("A
trial judge may order a new trial ifhe suspects that the jury verdict reflects
confusion.").
III.
EVIDENCE ADDUCED AT TRIAL
The relevant evidence adduced at trial, viewed in the light most favorable to
Lampkins, established the following.
A.
Lampkins Begins Work and Trains at Mitra's Camden Store
Mitra hired Lampkins in December 2014 to work as an Assistant Manager at
a restaurant it owned in Camden, Delaware. The Camden store was a "dual brand
store" that sold both KFC and Taco Bell food products.
Lampkins started work at the Camden store on December 29, 2014 as a
trainee in Mitra's eight-week training program. She received positive and negative
reviews during her training. She was paid at an hourly rate of $10.50. Pl. Ex. 6 at
1.
The Camden store had only two areas that were walled off within the store:
the bathrooms and an office. The office housed the store's safe and therefore, for
security reasons, had windows and a security camera that fed a monitor which
could be viewed by Mitra's security personnel in Texas.
6
Lampkins breastfed her newly-born baby throughout her tenure with Mitra
and she therefore needed to use a breast pump during work hours. For her first two
weeks at Mitra, Lampkins breast-pumped in the women's bathroom. When a
customer complained that Lampkins was tying up the bathroom, a supervisor
directed Lampkins to breast-pump in the office.
Lampkins was understandably unhappy about having to breast-pump in the
office. Mitra refused her request to cover the security camera lens, and thus she
"fe[lt] uncomfortable because there's people that I don't even know that are able to
essentially watch me doing something very private." Tr. 164:5-7. Her
supervisor's recommendation that Lampkins avoid the camera lens by "fac[ing] the
other way" did not alleviate Lampkins' concerns, as "fac[ing] the other way"
enabled coworkers to see Lampkins breast-pump through the office's windows.
Tr. 164: 14-21.
On one occasion in early or mid-January 2015, while Lampkins was breastpumping, a male coworker named Bo entered the office to check the store's
computer for operational statistics. Tr. 226:21-227:5. According to Lampkins, Bo
spent a "minute or two" on the computer, told Lampkins that she shouldn't breastpump at work, and left the office. Tr. 226:6-19. Lampkins complained to a
supervisor about Bo's walking in on her while she breast-pumped and his comment
about her breast-pumping at work. Tr. 227 :6-7. The supervisor later told
7
Lampkins that she had spoken to Bo about these matters. Lampkins testified that
Bo never spoke to Lampkins after Lampkins complained to her supervisor and that
Bo's silence was "really awkward and a little bit hostile." Tr. 165:19-23.
On another occasion at the Camden store, a male coworker named Reese
"peaked in [the office window while Lampkins breast-pumped] and made like little
squeezing gestures with his hands and kind of laughing, making a joke about it to
others." Tr. 166:8-10. After Lampkins complained to a supervisor about Reese's
conduct, the supervisor "brought in like a poster board to cover the window." Tr.
166: 11-12. According to Lampkins, the poster board "solved half of the problem .
. . , but we still ha[d] the major concern of the camera being in there and they
wouldn't turn that off." Tr. 166: 18-20.
When asked by her counsel at trial if"anyone else c[a]me into the office
while you were pumping" at the Camden store, Lampkins testified that "[t]he other
assistant managers occasionally would need to or they would run in really fast and
Joy [the Camden store's general manager] would come in." Tr. 166:21-24. When
asked "how did that make you feel?" Lampkins testified: "I was a little bit more
comfortable with them just because they were females and being like I've changed
in locker rooms in front of females, [and] it's easier to be comfortable around
somebody of your own sex against a male walking in." Tr. 166:25-167:5.
8
On February 8, 2015, at the beginning of Lampkins' seventh week in the
training program, her training coach, Emily Martin, sent an email with the subject
line "Urgent HR issues in Delaware" to Mitra' s Director of Human Resources,
Nancy Jacobi. Among the various issues identified in the email, one concerned
Lampkins: "External AUM trainee comes out of training next week and I need to
know if when she has to pump breast milk several times while at work should she
be on or off the clock?" Pl. Ex. 4 at 3. Jacobi responded to Martin's email in
relevant part:
On the young lady that needs to breast pump, not only
are we required to accommodate this, but we would
apply the rules just as we do when someone takes more
than 3 0 minutes. If it is under 3 0 minutes, we would
consider this a paid break. If more than 3 0 minutes is
required, we would require the employee to clock out and
clock back in. Out of curiosity, where is this person
going to be doing this? In the office or the ladies room?
Do we have outlets available for use in these places?
Id. at 1. In reply to Jacobi's email, Martin wrote: "Office-it has a door and
outlets[.] [L]adies room is a single stall so it would tie up the restroom for too
long." Id.
At some point in late January or early February 2015, Lampkins was
informed by Martin and Joy that Lampkins was being demoted to the position of
shift manager and transferred to a KFC-only (i.e., single brand) restaurant owned
by Mitra in Dover, Delaware. According to Lampkins, "the first words out of
9
[Martin's] mouth was, [']we're going to demote you because you're breastfeeding.
It will be easier for you to run a single brand store and you '11 have more time to
step away, and once you' re done nursing, you can go back into the assistant
manager position that you originally were hired for.'" Tr. 169:9-14. Lampkins
testified that the transfer to Dover "c[a]me with a pay cut and reduced hours, but
[that Martin] assured [her] it was all for [her] own benefit, and that ... once
[Lampkins] was done [at Dover], that [Mitra] would not have any problems
bringing [her] back into the assistant manager position [at Camden]." Tr. 170:1-6.
Lampkins was disappointed by the transfer and demotion, but she did not complain
to Mitra' s human resources department because she needed the job and because "I
felt like I was already being reprimanded for nursing and I didn't want them to get
just get rid of me altogether." Tr. 170: 17-24.
B.
Lampkins Moves to Mitra's Dover Store
Lampkins completed her training at the Camden store in the second week of
February 2015. She began working as a shift manager at the Dover store on
February 18, 2015. Her hourly rate was $10.00. Pl. Ex. 6 at 4.
Lampkins' typical shift at the Dover store began at 4:00 p.m. and ended at
11 :00 p.m. Tr. 172:4-5. She was charged with supervising six part-time
employees, whom she referred to as her "team members." Tr. 172:6-9. Lampkins
10
testified that her team members did not like the fact that she took breaks to breastpump:
Q.
How would you let your team members know that
you were going to take a break and express breast milk?
A.
I would tell them. I would give them any direction
or any duties I wanted them to get done while I was on
my break and then I would tell them, okay. ["]I'm going
to go in the office now. I will be done in about 15
minutes["] and I would just go.
Q.
So tell the jury what type of problem did you
encounter, if any, with regard to expressing breast milk
while at the Dover store?
A.
The team members didn't want me to go. They
would take attitudes with me. They would tell me that if
I went to the [back] or to take a break, that they were
going to leave. That they would just abandon their
shift[s]. Just constant attitudes, like it was an
inconvenience for me to get a break.
Q.
And who specifically threatened to leave the store?
A.
Destiny told me that if I went into the office, she
was going to leave.
****
Q.
Did you ever complain to Lisa [Lampkins'
supervisor at the Dover store] about your team members'
.
?
att1tudes ....
A.
I brought it up to Lisa more times than I could
count and she just -- she brushed off my concerns. She
gave them justifications for why they were behaving that
way. She just never stood behind me as a manager. She
just, it just seemed like it was, like she didn't even care.
Q.
What was Lisa's response to the comment that
[D]estiny made to you, that she would threaten to walk
out? ...
A.
Well, [D]estiny did walk out one night. She
abandoned her job. I had -- I asked her to go take a
customer's order at the front because she was the only
register there and she kind of, she got mad. She went and
took the order and then she went and took her lunch. At
11
the end[] of her lunch, she came into the office during the
time I was pumping. She grabbed her stuff and she left.
And so when I realized that she didn't come back,
I called Lisa. Lisa told me that she needed to research
this because Destiny's sister was the manager in the
Milford location and she was pregnant at the time. So
she was concerned something may have been serious.
Lisa came back to me and told me Destiny said
that I annoyed her....
And that's why she left.
Tr. 173:8-174:1; 176:11-177:14.
As in the Camden store, the bathrooms and the office in the Dover store
were the only walled-off areas. Mitra refused Lampkins' request to cover the
security camera lens in the Dover office; and, like the Camden office, the Dover
office had windows through which coworkers could observe Lampkins breastpump.
In response to questions by her counsel about coworkers entering the office
in the Dover store while Lampkins breast-pumped, Lampkins testified as follows:
Q.
What about were there any instances of employees
walking in on you?
A.
Yes. Chris. He was a new cook, so he somehow
walked in. I don't know. Maybe the door wasn't latched
all the way because I thought it was closed and locked,
but he barged in and asked me how much chicken I
wanted him to cook, so being as I was in the middle of
pumping, I directed him to an experienced team member
and said, ["A]sk Destiny,["] because she was on the line.
She knew what time the chicken was up. She could
make an educated decision.
12
So he went ahead and he went to [Destiny] about it
and before I could even bring up the issue of him walking
in on me, I received messages from Lisa reprimanding
me, telling me I was wrong, that that was a manager call.
["]Destiny should not tell him how much chicken to
drop["] and I should stop what I'm doing to answer his
questions.
****
Q.
Did you experience any other interruptions while
you were expressing breast milk at the workplace in
Dover?
A.
The office -- yes, I did. The office was where
everyone kept all their personal belongings, so the team
members would want to come get their cellphones or
their purses and things like that. So they would come
knock on the door for [their] stuff.
Q.
And what would your response be to those
interruptions?
A.
If I was covered enough or if I didn't start yet, I
would let them come get it. Sometimes I would tell them
that they had to wait because I would just be too exposed.
It just kind of varied on those situations, but I did let
them come in at times just so they could grab the[ir]
phone[s] and run out really fast.
Q.
Why were you okay with that?
A.
Again, they were all females that I was letting in
and I just wanted them to respect[] my pumping, which
they already weren't, so I didn't really want to give them
more of a reason to be insubordinate towards me.
Q.
And about how often would these type of
interruptions occur?
A.
Several times a week.
Tr. 174:2-18; 175:8-176:5.
13
C.
The "Jacket Incident"
Lampkins' last day of work for Mitra was April 27, 2015. She quit the
following day because of what she described as the "jacket incident." Tr. 183:24.
In Lampkins' words:
Q.
Okay. So what was the reason that you left Mitra?
A.
The jacket incident.
Q.
Tell us about the jacket incident?
A.
A customer had left their jacket in the lobby area
and while I was cleaning up the lobby, I noticed it. None
of the team members said it was theirs, so I put [it] in the
office with our belongings. I knew it was a nice jacket.
They were going to come back for it. I knew that, so I
put it with our stuff because all of our stuff [was]
together and there was no lost and found per se.
So that evening when I was closing, I went and
grabbed my personal belongings out of -- my breast milk
out of the fridge. I turned the lights off. I set the alarm
and I grabbed my stuff out of the office, clocked out, and
went home. And the next day I woke up to several text
messages, several Facebook messages from other people
at the store, asking if I had taken this jacket. And I told
them, no, I don't think I did. I said, let me just doublecheck.
I went to my car and there was the jacket in there,
so I called Lisa and I told her, hey, Lisa, I accidentally
grabbed this jacket last night and I'm getting messages
about it.
And she kind of huffed at me, like [sighed] and
was, like, well, I have to talk to Emily about this. I told
her, okay. Well, I will bring it in for my shift. I will
have it back to you guys before tonight.
And before I even went in, I was receiving text
messages from my friends telling me that the rumor was I
was going to be terminated and they were trying to make
it look like I was stealing, and at this point I was upset
about it. On top of everything they had done, I did not
•
14
want them to make me look like a thief, so I decided that
it was time for me to just end my employment there
rather than be terminated _and have to put that on my
resume.
Q.
And what did you do with the jacket?
A.
I gave it to my son's father Matthew, because I
was very, very upset about it, and I didn't want to go see
them and face them after everything, so I asked him to
turn it in for me and he took my keys, my uniform and
the jacket and brought it back to the store and told them
that I would no longer be there.
Tr. 183:23-185:14.
D.
Lampkins' Summary Testimony
Lampkins concluded her direct examination at trial with the following
summary testimony:
Q.
Okay. Once you got to Dover, what made it
difficult, if anything, for you to do your job?
A.
The only thing [that] made it difficult for me to do
my job was the insubordination I received from the team
members and Lisa's lack of support.
Q.
And why were the team members in[]subordinate
to you? ...
What did they tell you?
A.
They told me things like they didn't want me to go
pump and they didn't want[] to pick up my slack and
they weren't going to -- they were going to leave if I did
it. You know, if I did take that break, and it was a
nightmare.
Tr. 185:23-186:11.
15
IV.
DISCUSSION
A.
The Jury Could Not Reasonably Find that Lampkins was
Subjected to A Hostile Work Environment
For her hostile work environment claim, Lampkins was required to prove
that: (1) she suffered intentional discrimination because of her sex; (2) the
discrimination was severe or pervasive; (3) the discrimination detrimentally
affected her; (4) the discrimination would detrimentally affect a reasonable person
in like circumstances; and (5) there is a basis for holding her employer liable.
Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013).
The Supreme Court has repeatedly emphasized that, "[f]or sexual
harassment to be actionable, it must be sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive working
environment." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (internal
quotation and alteration marks omitted). The objectionable conduct "must be both
objectively and subjectively offensive, [such] that a reasonable person would find
[the conduct] hostile or abusive, and ... the victim in fact did perceive [the
conduct] to be so." Faragher v. City ofBoca Raton, 524 U.S. 775, 787 (1998).
In Clark City School District v. Breeden, 532 U.S. 268 (2001), the Supreme
Court instructed that
[w]orkplace conduct is not measured in isolation; instead,
"whether an environment is sufficiently hostile or
abusive" must be judged "by 'looking at all the
16
circumstances,' including the 'frequency of the
discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee's work performance."' Hence, "[a] recurring
point in [our] opinions is that simple teasing, offhand
comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in
'the terms and conditions of employment."'
Id. at 270-71 (alterations in original) (citations omitted). "These standards for
judging hostility are sufficiently demanding to ensure that Title VII does not
become a general civility code." Faragher, 524 U.S. at 788 (internal quotation
marks and citation omitted).
Mitra argues that there was insufficient evidence to support a finding that
Lampkins was subjected to intentionally discriminatory conduct that was severe or
pervasive or that would detrimentally affect a reasonable person in Lampkins'
circumstances. In response, Lampkins points to 14 circumstances she claims
collectively amount to severe or pervasive discriminatory harassment based on her
lactating condition. In the words of Lampkins' counsel:
In Camden, Autumn let her co-workers know when she
was going to the office to pump. In Camden, Autumn
endured the following: [1] "Reese" peeped into the office
while Autumn was pumping and made squeezing hand
gestures; [2] Bo O'Connell ("O'Connell["]) entered the
office while Autumn was in there at least once and told
her she should be pumping at home; [3] although
O'Connell may or may not have walked in on her again,
he awkwardly refused to talk to her again, which Autumn
17
took as hostile; [4] management level employees were
complaining about Autumn's pumping; [5] Autumn had
to pump in an office where she had to choose whether to
have her privacy violated by pumping in front of a
window or in front of a surveillance camera; and [6] she
was demoted.
In Dover, defense witness Kanita Stewart stated
that when Autumn went to the office, everyone knew she
was going to pump and not to enter the closed office
without knocking. Nonetheless, Autumn endured the
following in Dover: [7] a cook, Chris, opened the closed
office door to find out how much chicken to cook; [8]
another [unnamed] cook peered in the window into the
office on two occasions; [9] team members staged a
mutiny and called Autumn's boss when she tried to
pump; [1 O] one team member walked out on her shift;
[ 11] Autumn's attempts to cover up the window were
stymied; [12] Lisa told Autumn, apparently falsely, that a
customer saw Autumn's breast; [13] Autumn was forced
to sit where the camera was aimed despite the fact there
was an ostensible "blind spot" in the office; and [14] her
hours were cut.
D.I. 172 at 2-4. I will address these circumstances individually and then
collectively.
1.
Reese's "Peeping" in the Office (Circumstance 1)
Lampkins testified that on a single occasion while she breast-pumped in the
Camden store's office, a male team member named Reese "peaked in" the office
window and "made like little squeezing gestures with his hands and kind of
laughing, making a joke about it to others." Tr. 166:7-13. The Supreme Court's
holding in Breeden makes clear that this type of "simple teasing, offhand
18
comment[], and isolated incident[]" is insufficient as a matter of law to give rise to
a hostile work environment claim. 532 U.S. at 271. Moreover, Lampkins testified
that after she complained about Reese's behavior, her supervisor covered the
Camden office window with a poster and, in Lampkins' words, "solved ... th[at]
problem." Tr. 166:18.
2.
Bo's Entrance into the Camden Store Office and Comment
to Lampkins (Circumstances 2 and 3)
Lampkins testified that Bo entered the Camden office on a single occasion
while she breast-pumped and told her she should be pumping at home. But she
acknowledged that Bo entered the office for a legitimate business purpose (to
check the computer for operational statistics) and stayed only "[a] minute or two."
Tr. 226:18-19. This brief and isolated incident was neither abusive nor
threatening, and there was no evidence that Lampkins subjectively felt that the
incident interfered with her work performance or otherwise detrimentally affected
her. Lampkins testified that after she complained to her supervisor about the
incident and the supervisor spoke to Bo about it, Bo never again spoke with her
and that Lampkins found his silence to be "really awkward and a little bit hostile."
Tr. 165:19-23. But regardless of Lampkins' subjective feelings, Bo's subsequent
silence would not detrimentally affect a reasonable person in Lampkins'
circumstances, and it does not amount to the type of abusive behavior required to
sustain a hostile work environment claim.
19
3.
Managerial Complaints about Lampkins' Breast-Pumping
(Circumstance 4)
In support of her assertion that "management level employees ...
complain[ed] about [her] pumping," D.I. 172 at 3, Lampkins cites to the following
testimony of Nakia Anderson, a former coworker of Lampkins at the Camden
store:
Q.
Okay. And what, if any, complaints about Autumn
pumping in the office did you ever learn about while you
were working in the Camden store with Autumn?
A.
One of the managers used to complain about it
because, like, she would have to put the stuff in the walkin cooler and so like a lot of people didn't like that
because that's where the food is that we actually have to
serve, and then there were complaints because sometimes
we could be in the middle of like a rush and she would
have to walk away from the line, and there was they were
like struggling because we were short a person. In the
middle of a rush means at least three on each side.
Q.
Okay. And who do you remember making those
complaints, if you can recall?
A.
I know Joanna was one of them. Some of the crew
members would complain as well.
Q.
Okay. Joanna Butz?
A.
Yes.
Tr. at 478: 11-479:7.
The only "complaint[]" here about which Anderson testified and attributed
to "[o]ne of the managers" was specifically about storing breastmilk in the walk-in
freezer-not about Lampkins' breast-pumping or lactating status. Moreover,
Anderson's testimony does not reveal any instance of a manager complaining other
20
than this one isolated incident. See Breeden, 532 U.S. at 271. Furthermore, there
is no evidence-and no reason to infer-that this one incident of a managerial
complaint was threatening, humiliating, or abusive. See id.
4.
The Fact that Lampkins Had to Breast-Pump in An Office
with a Security Camera and Windows That Afforded Her
Insufficient Privacy (Circumstances 5 and 13)
Lampkins' pointing to Mitra's failure to provide her a more private place to
breast-pump as evidence that Mitra subjected her to a hostile work environment
runs afoul of my pre-trial order that granted in part Mitra' s motion in limine, see
D .I. 13 2, and also conflicts with Lampkins' own counsel's acknowledgment before
trial that Title VII is not an accommodations statute, see Jan. 8, 2019 Tr. at 141:11.
As noted in my in limine order (and as has been held by every court that has
addressed the issue), Title VII does not impose liability on employers for failing to
provide suitable times or places for breast-pumping at work. See D.I. 132 at 2 and
cases cited therein. Although the Pregnancy Discrimination Act amendments to
Title VII prohibit employers from taking adverse actions based on a woman's
lactating status, they do not require employers to provide accommodations for
breast-pumping. For that reason, I granted Mitra's motion in limine insofar as it
sought to preclude Lampkins from introducing in support of her hostile work
environment claim "evidence of the alleged harm that [she] claims she suffered by
the denial of breaks and the lack of a private place to express milk." D.I. 132 at 1.
21
That is not to say that the conditions in which Mitra required Lampkins to breastpump were irrelevant to her case. On the contrary, I denied Mitra's motion in
limine insofar as it sought to preclude Lampkins from introducing at trial and
relying on in support of her hostile work environment claim "evidence that she was
not provided an exclusively private place to express breast milk" and "evidence
regarding the existence of a security camera in the office." D.I. 132 at 4. This
latter evidence, as I explained in the in limine order, was "central to understanding
the circumstances in which [Lampkins'] co-workers encountered her and harassed
her as alleged in her complaint." D.I. 132 at 3.
In contrast to Title VII, the FLSA does require certain employers to provide
a nursing mother under their employ a reasonable break time and a private place
other than a bathroom to express breast milk for one year after the birth of her
child. See 29 U.S.C. § 207(r){l). Moreover, as I held in a pre-trial Memorandum
Opinion, section 2 l 6{b) of the FLSA creates a private right of action to enforce this
requirement. D.I. 101 at 12; see also Tolene v. T-Mobile, USA, Inc., 178 F. Supp.
3d 674,680 (N.D. Ill. 2016) (holding "there is a limited private right of action for
the enumerated damages in§ 216(b) ... to enforce violations of§ 207(r)"); Hicks
v. City of Tuscaloosa, 2015 WL 6123209, at *29 (N.D. Ala. Oct. 19, 2015) (same);
Lico v. TD Bank, 2015 WL 3467159, at *3 (E.D.N.Y. June 1, 2015) (same). But
see Eddins v. SSP Am., Inc., 2013 WL 12128683, at *3 (S.D. Iowa Jan. 31, 2013)
22
("[T]he [FLSA] regulations do not currently provide for a private cause of action
under§ 207(r)."); Ames v. Nationwide Mutual Ins. Co., 2012 WL 12861597, at *6
n.26 (S.D. Iowa Oct. 16, 2012) ("hold[ing] that the FLSA does not provide a
private cause of action to remedy alleged violations of§ 207(r)"); Salz v. Casey's
Mktg. Co., 2012 WL 2952998, at *3 (N.D. Iowa July 19, 2012) ("Since Section
207(r)(2) provides that employers are not required to compensate employees for
time spent express milking, and Section 216 (b) provides that enforcement of
Section 207 is limited to unpaid wages, there does not appear to be a manner of
enforcing the express breast milk provisions.").
Section 216(b), however, does not offer Lampkins the remedy she seeks in
this case-i.e., lost wages; and therefore I granted in part before trial Mitra's
motion for summary and dismissed Lampkins' FLSA claim. See D.I. 101 at 13
(noting that "[b]y its express terms, § 216{b) limits the remedies available for
violations of§ 207(r) to 'unpaid minimum wages' and 'unpaid overtime
compensation"'). Notwithstanding the dismissal of her FLSA claim and my in
limine order, Lampkins in effect litigated in front of the jury an unreasonable
accommodations case, see, e.g., Tr. 163:9-15; 167:18-168:9; 178:10-179:10;
261:14-263:1; 326:23-327:8; 406:25-407:9; 477:24-478:1; 512:22-514:1; 560:38; 991:24-993:22; 1002:18-1003:8; 1004:16; 1021:16-17; and she is now asking
the Court to sustain her hostile work environment claim based on Mitra's failure to
23
provide her reasonable accommodations to breast-pump. As inadequate as I might
personally find the breast-pumping accommodations Mitra offered Lampkins, the
unreasonableness of the accommodations is not cognizable under Title VII and
does not establish a hostile work environment.
5.
Lampkins' Demotion and Reduction in Work Hours
(Circumstances 6 and 14)
Lampkins asserts that her demotion and reduction in work hours-the very
same acts upon which she based the disparate treatment claims she won at trialconstitute evidence of a hostile work environment. A plaintiff, however, "cannot
base her hostile work environment claim on the gender-based employment
decisions that underpin her disparate treatment claim[s]." Parker, 11 F. Supp. 2d
at 4 76. As Judge Schwartz explained in Parker:
[T]he dangers of allowing standard disparate treatment
claims to be converted into a contemporaneous hostile
work environment claim are apparent. Such an action
would significantly blur the distinctions between both the
elements that underpin each cause of action and the kinds
of harm each cause of action was designed to address.
The United States Supreme Court taught in the
seminal case on hostile work environment claims,
Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct.
2399, 91 L.Ed.2d 49 (1986), that such claims are
grounded in sexual harassment. Id. at 64-65, 106 S.Ct.
2399. Such harassment may take the form of
'"unwelcome sexual advances, requests for sexual favors,
and other verbal or physical conduct of a sexual nature."'
Id. at 65, 106 S.Ct. 2399 (quoting 29 C.F .R. §
1604.1 l(a)). When not in the form of an economic quid
24
pro quo, sexual harassment has the "'purpose or effect of
unreasonably interfering with an individual's work
performance or creating an intimidating, hostile, or
offensive working environment."' 477 U.S. at 65, 106
S.Ct. 2399 (quoting 29 C.F.R. § 1604.l l(a)(3)). As the
Supreme Court discussed, hostile work environment
claims provide a means of redress under Title VII for
discrimination that does not take the more traditional
form of a tangible or economic loss but rather for
discrimination that contaminates the psychological
aspects of the workplace to the degree that the conditions
of the workplace are altered. 477 U.S. at 64-67, 106
S.Ct. 2399.
Although the assignment of a hostile supervisor
and false accusations by that supervisor could be
classified as the kind of "discriminatory intimidation,
ridicule and insult" addressed by a hostile work
environment claim, 477 U.S. at 65, 106 S.Ct. 2399, the
more favorable treatment of men with respect to troop
and shift assignments and transfer opportunities could
not. See MATTHEW BENDER, E:rvIPLOYJvIBNT
DISCRIMINATION,§§ 46.01-46.03 (2d ed.1995)
(discussing acts that constitute sexual harassment).
Instead, these latter forms of discrimination present basic
disparate treatment scenarios, that is, the kind of tangible
or economic losses that the Vinson Court contrasted with
a hostile environment. Such disparate treatment consists
of employment policies or employment decisions
involving, for example, hiring, firing, benefits,
promotions and compensation. See BARBARA
LINDEMANN & PAUL GROSSMAN,
E:rvIPLOYJvIBNT DISCRIMINATION LAW, Chpt. 2 (3d
ed.1997) (discussing acts that constitute disparate
treatment).
Id. at 475-76; see also Diggs, 700 F. Supp. 2d at 51 ("Plaintiff cannot rely on the
discrete acts upon which he bases his claims of discrimination ... to establish he
25
was subject to a hostile work environment."); Rattigan, 503 F. Supp. 2d at 81
("Plaintiff should not be permitted to 'bootstrap' his alleged discreet acts of
discrimination ... into a broader hostile work environment claim."). Accordingly,
Lampkins' demotion and cut in hours cannot sustain her claims that a hostile work
environment resulted in her demotion and cut in hours.
Nor can Lampkins' demotion and reduction in work hours sustain her claims
that she was subjected to a hostile work environment generally and that a hostile
work environment resulted in her constructive discharge. The demotion and cut in
hours were the consequence of the decision to transfer Lampkins to the Dover
store-a one-time event. Even if a single episode of harassment could create a
hostile work environment, Mitra's decision to transfer Lampkins to the Dover store
was not, even if viewed in the light most favorable to Lampkins, the type of
invidious or abusive conduct that by itself would be so severe that a reasonable
person in Lampkins' situation would deem it hostile. See Faragher, 524 U.S. at
787.
6.
Chris's "Walking in" on Lampkins (Circumstance 7)
Lampkins testified as follows about her encounter with Chris, a cook who
worked under her supervision at the Dover store:
Q.
What about were there any instances of employees
walking in on you?
A.
Yes. Chris. He was a new cook, so he somehow
walked in. I ~on't know. Maybe the door wasn't latched
26
all the way because I thought it was closed and locked,
but he barged in and asked me how much chicken I
wanted him to cook, so being as I was in the middle of
pumping, I directed him to an experienced team member
and said, ["A]sk Destiny,["] because she was on the line.
She knew what time the chicken was up. She could
make an educated decision.
So he went ahead and he went to [Destiny] about it
and before I could even bring up the issue of him walking
in on me, I received messages from Lisa reprimanding
me, telling me I was wrong, that that was a manager call.
["]Destiny should not tell him how much chicken to drop
and I should stop what I'm doing to answer his
questions.["]
****
Q.
. .. And now, Chris wouldn't have had a key to the
office door there; right?
A.
No.
Q.
Okay. So ifhe walked in, it's because the door
wasn't fully shut?
A.
It wasn't fully shut or may have not, I might have
forgotten to lock it that one time. I'm not exactly sure.
Q.
Okay. Then he wanted to know how much
chicken to cook?
A.
Yes ....
Q.
And you don't think Chris was purposely trying to
harass you when he asked how much chicken to cook?
A.
I think he just needed direction.
Q.
Wasn't that your job, to give direction to the staff?
A.
It was.
Tr. 174:2-18; 229:14-230:7. This testimony speaks for itself. A reasonable juror
could not find based on this testimony that Chris's actions were discriminatory,
abusive, or derogatory or contributed in any way to a hostile working environment.
Nor could a juror reasonably conclude that Lisa's admonishment of Lampkins for
27
sending Chris to Destiny for directions was linked to Lampkins' breast-pumping
since Lampkins testified that Lisa admonished Lampkins "before I could even
bring up the issue of him walking in on me."
7.
"Peering" by the Unnamed Cook (Circumstance 8)
Lampkins cites the following testimony of her supervisor, Lisa Rhinehardt,
as evidence that an unnamed cook "peered in the window into the [Dover] office
on two occasions":
Q.
All right. Now, isn't it true that your cook at
Dover looked through the window to the door of the
office twice while Autumn was pumping and saw her
breasts?
A.
He was trying to get her attention for a question,
yes, and didn't know her shirt was off.
Q.
Okay. And after he walked in on her twice, he
didn't want to work on Autumn's shifts; is that correct?
A.
Yes. He was uncomfortable.
Tr. 557:1-8; see also D.I. 172 at 3 n. 26 (citing Tr. 557:6-8). 5 This testimony in
no way suggests that the unnamed cook was discriminating against Lampkins or
harassing her. On the contrary, the testimony establishes that the cook was
uncomfortable because on two occasions when he "tr[ied] to get [Lampkins']
5
The misleading nature of the questioning by Lampkins' counsel in the quoted
excerpt from the trial transcript was not lost on the Court. Counsel's initial
question to Rhinehardt asked for confirmation that the cook had "looked through
the window to the door of the office twice." Tr. 557:1-3. After Rhinehardt
provided that confirmation, counsel immediately followed up with "[a]nd after he
walked in on her twice," thereby misstating the witness's testimony. Tr. 557:6.
28
attention" to ask her a question, he saw Lampkins' breasts because he "didn't
know her shirt was off." Moreover, there is no evidence that Lampkins knew that
the unnamed cook had seen her breast-pumping, and therefore it cannot be said
that the cook's actions detrimentally affected Lampkins.
8.
"Mutiny" by Lampkins' Team Members (Circumstance 9)
The evidence that Lampkins cites in support of her assertion that her team
members "staged a mutiny," see D.I. 172 at 3 & n.27, establishes at most that she
had problems and poor relations with her coworkers and that her coworkers were
unhappy that they had to work while Lampkins was able to take breaks. Lampkins
points to no instance where a coworker was threatening, abusive, or hostile to her
because she was lactating. Her coworkers' resentment of her arose not because she
was lactating, but because she took breaks while they had to work. As Lampkins
herself testified: "They told me things like they didn't want me to go pump and
they didn't want to pick up my slack ...." Tr. 186:8-9 (emphasis added).
9.
Destiny's Walking Out During Her Shift (Circumstance 10)
Lampkins similarly points to no evidence that Destiny's "walk[ing] out on
her [own] shift" was directed at Lampkins' lactating status. According to
Lampkins' own testimony, Destiny's walking out was because Lampkins "annoyed
her." See Tr. at 177:3-12. Lampkins' testimony further established that Destiny,
like Lampkins' other coworkers, resented that she had to work while Lampkins
29
took breaks. See Tr. 173:18-21 ("The team members[, including Destiny,] didn't
want me to go [on breaks]. They would take attitudes with me. They would tell
me that ifl went to the [back] or to take a break, that they were going to leave.").
Finally, even if Destiny's annoyance with Lampkins could be linked with
Lampkins' lactating status, Destiny's walking out on her shift was a one-time,
isolated occurrence that was neither physically threatening nor abusive and cannot
sustain a hostile work environment claim. See Breeden, 532 U.S. at 271.
10.
Lampkins' "Stymied" Attempts to Cover the Dover Office
Window (Circumstance 11)
Lampkins next argues that, at the Dover store, her "attempts to cover up the
[the office's] window were stymied." D.I. 172 at 3 & n.29. The only testimony
cited by Lampkins that relates to this assertion is the following:
Q.
And how did you attempt to address any privacy
concerns you had with the office .in Dover?
A.
On the window, Lisa [Lampkins' supervisor at
Dover] had already printed out like praises from surveys
that were taken about doing well, so I printed out a few
that highlighted my nighttime co-workers about, you
know, positive things and I put those on the windows.
And the very next shift I came in, only mine had been
removed. The daytime people, their praises were still
there, but the nighttime ones were tom down and never to
be found again.
Q.
Who took it down?
A.
I could only assume it was Lisa, because she was
the only person with the authority or access to the office
really.
[Mitra's Counsel]: I move to strike.
30
THE COURT: Sustained. I'm going to strike it.
You can't assume as a testifier. You can only testify
about something you know. So the witness' testimony
regarding her assumption is struck.
Tr. 181:21-182:14.
Lampkins' reliance on this testimony is problematic for a number of reasons.
First, to the extent the testimony addresses the lack of privacy afforded by the
accommodations Mitra was willing to give its lactating employees, it is, as
discussed above, irrelevant. See supra Section IV.A.4. Second, the testimony
establishes that only the surveys for Lampkins' shift were removed. Since the
surveys for other shifts were left on the windows, the testimony does not support
the notion that the surveys were removed in order to make the office visible from
the outside. Third, nothing in the record suggests that the surveys were removed
because of Lampkins' lactating status. Indeed, Lampkins did not know who took
down her shift's surveys, and she did not suggest nor have any basis to conclude
why the surveys were taken down. Fourth, the removal of the surveys was neither
threatening nor abusive and was an isolated event. See Breeden, 532 U.S. at 271.
11.
Lisa's Report That a Customer Saw Lampkins' Breast
(Circumstance 12)
Finally, Lampkins argues that her supervisor "Lisa told [her], apparently
falsely, that a customer saw [her] breast." D.I. 172 at 3-4 & n.30 (citing Tr. at
31
181:9-20, 581:24-582:1). In support of this argument, Lampkins cites the
following testimony from her own direct examination:
A.
. .. Lisa told me that a customer had seen my
breasts and at the time I was very confused as to how that
was even possible because from the front line, a customer
could not see where I was at in the office. But it was, she
did tell me that a customer had seen my breasts and
complained about it.
Q.
And how did she convey that to you?
A.
Like it was a problem, like I had done something
wrong even though it was me who should have been
upset about it. She -- it was like I was being reprimanded
again, not like it was a coaching moment or something to
bring to my attention. It was like I was in trouble for
doing it.
Tr. at 181 :9-20. Although Lisa testified at trial, neither party asked her whether
she ever told Lampkins that a customer saw Lampkins' breasts. Lampkins'
counsel asked Lisa on cross-examination whether it was "true that a customer
could not see in the office when Autumn was pumping?" and Lisa replied,
"Correct." Tr. at 581 :24-582: 1.
Lampkins offers no explanation about how Lisa's "apparently false[]"
statement bears on Mitra's pending motion. My best guess as to why the
"apparently false" statement could be relevant is that it arguably could suggest that
Lisa harbored animus towards Lampkins b_ased on Lampkins' lactating status. In
any event, Lampkins testified only that she was "confused" by Lisa's statement
32
and did not suggest in any way that she found Lisa's statement to be abusive,
harassing, or hostile.
12.
The Circumstances Considered in Their Totality
As noted, two of the 14 circumstances cited by Lampkins cannot as a matter
of law provide the basis of her hostile work environment claims because they relate
to the reasonableness ofMitra's breast-pumping accommodations (circumstances 5
and 13 ). Another two of the circumstances cannot as a matter of law provide the
basis of her claims that a hostile work environment resulted in her demotion and
reduction in hours (circumstances 6 and 14), because they underpin Lampkins'
disparate treatment claims. But even if these four circumstances are considered,
the 14 circumstances viewed in their totality could not as a matter of law sustain a
jury's finding that Mitra subjected Lampkins to a hostile work environment. None
of the incidents cited by Lampkins involved a derogatory statement toward
Lampkins based on her lactating status (or even based on her sex). None of the
incidents were threatening, abusive, or hostile. And none of the cited incidentseither individually or in combination with another-constituted harassment.
Lampkins makes much of the fact that four male coworkers-on separate
and momentary occasions-saw her breast-pumping during the four-and-one-half
months she worked at Mitra. As an initial matter, even giving Lampkins the
advantage of every fair and reasonable inference, there is no evidence that any of
33
the men actually saw Lampkins' breasts. (Lampkins testified that she covered
herself when she breast-pumped. 6) Two of the men, Bo and Chris, saw Lampkins
breast-pump when they entered the office. It is undisputed, however, that they
both entered the office for legitimate business purposes and stayed in the office for
only a minute or two. With respect to the unnamed cook who told Lisa he had
seen Lampkins breast-pump, Lampkins had no awareness at the time of her
employment that she had been seen by this person.
The only conduct Lampkins encountered that could reasonably be deemed to
be offensive was the "squeezing hand gestures" Reese made when he saw
Lampkins breast-pumping through the Camden store office window. But
Lampkins never suggested that she felt threatened or humiliated by these gestures;
. and this isolated incident is akin to "a mere offensive utterance," which the
Supreme Court has deemed insufficient to support a hostile work environment
finding. See Breeden, 532 U.S. at 271.
There is, finally, no evidence that anyone other than Bo (who told Lampkins
she should breast-pump at home) and Lampkins' supervisors (whose actions
6
Lampkins testified that she wore a "breast cover" when she pumped that "covered
the front" and "it kind of covered the side" though it "moved freely." Tr. 217:611. The only evidence adduced at trial that a person actually saw Lampkins'
breasts was Lampkins' testimony that Lisa told Lampkins that a customer saw her
breasts. But, as noted above, Lampkins argues that this testimony was "apparently
false."
34
formed the basis of Lampkins' disparate treatment claims) harbored any animus
towards Lampkins based on her lactating status (or her sex). See Breeden, 532
U.S. at 271. Lampkins argues that "[l]actation was the [m]otivation for [a]ll of
Mitra's [d]iscrimination." D.I. 172 at 9. She cites in support of this argument (1)
the emails exchanged between Jacobi and Martin; (2) her testimony that Martin
told Lampkins soon after the email exchange that she was being transferred to a
single-brand store, demoted, and getting her hours reduced because she was breastpumping; and (3) Lisa's reduction of Lampkins' work hours after Lampkins moved
to the Dover store. Id. at 9-10. But this evidence of Lampkins' supervisors' intent
and motivation bears on Lampkins' disparate treatment claims, not on her hostile
work environment claims.
Viewed in the light most favorable to Lampkins, the circumstances
identified by Lampkins establish that she had an unpleasant relationship with her
coworkers, and that her coworkers resented her for taking so many breaks to pump.
As Lampkins testified at the conclusion of her direct testimony at trial: "the only
thing that made it difficult for [her] to do [her] job was the insubordination" of her
team members; and they were insubordinate because "they didn't want [Lampkins]
to go pump and they didn't want to pick up [Lampkins'] slack." Tr. 185-86
(emphasis added).
35
In sum, the isolated incidents of conduct cited by Lampkins were not
"sufficiently severe or pervasive to alter the conditions of [her] employment and
create an abusive working environment." Vinson, 477 U.S. at 67. Accordingly, I
will enter judgment as a matter of law on Lampkins' hostile work environment
claims.
B.
A New Trial is Required
Having concluded that the jury's findings in favor of Lampkins' hostile
work environment claims were unreasonable and should be overturned, I believe
that it would be a miscarriage of justice to allow the jury's disparate treatment
findings to stand, as I think the jury was confused by the various and conflated
theories of liability presented both explicitly and implicitly by Lampkins at trial.
As an initial matter, I am concerned that the emphasis Lampkins placed at
trial on the suitability ofMitra's breast-pumping accommodations effectively made
that issue the dispositive question for the jury. See, e.g., Tr. 163:9-15; 167:18168:9; 178:10-179:10; 261:14-263:1; 326:23-327:8; 406:25-407:9; 477:24478:1; 512:22-514:1; 560:3-8; 991:24-993:22; 1002:18-1003:8; 1004:16;
1021: 16-17. Mitra bears some responsibility for Lampkins' tactic, as it moved in
/imine before trial to limit the use of accommodations evidence only to the extent
Lampkins sought to introduce that evidence "in support of her claim that she was
subjected to a hostile work environment." D.I. 113 at 1. I granted the motion, but
36
because Mitra failed to timely move in limine to preclude Lampkins from
introducing the same evidence in support of her disparate treatment claims, much
of the accommodations evidence was presented at trial and Lampkins' counsel
repeatedly suggested both expressly and impliedly that Mitra should be held liable
because it failed to provide Lampkins suitable accommodations to breast-pump. In
his closing argument, for example, counsel made ten references to the
"surveillance camera" in the office and said the camera was "significant because ..
. [Lampkins] had to have a hundred percent privacy," that "again, the privacy was
an issue," and that Lampkins "was constantly subjected to a lack of privacy when
she pumped." Tr. 1002:18-1003:8; 1004:16, 1021:16-17.
As Lampkins' counsel acknowledged before trial, however, Title VII is not
an accommodations statute. Claims based on the adequacy and frequency of
breast-pumping accommodations fall exclusively under the FLSA. The remedies
available under the FLSA are determined exclusively by Congress; and Congress
saw fit not to provide plaintiffs whose employers fail to provide adequate breastpumping accommodations the remedies Lampkins sought in this case. That is why
I granted Mitra' s pretrial request to dismiss Lampkins' FLSA claim and that is why
Mitra was unfairly prejudiced by Lampkins' strategic decision to try in effect an
accommodations case before the jury.
37
Second, Lampkins' insistence on conflating her disparate treatment and
hostile working environment claims undoubtedly confused the jury. Lampkins
presented ten different theories of Title VII liability. The theories overlapped and
in some instances were conflicting and made no sense. For example, although
Lampkins testified that her supervisor explicitly told her that she was being
transferred (and thus being demoted and having her hours cut) "because you're
breastfeeding," Lampkins refused to limit herself to a disparate treatment theory
and insisted on an instruction to the jury on constructive demotion and reductionin-hours theories based on the conduct of her coworkers-Le., that the hostile work
environment created by her coworkers was so severe and pervasive that it resulted
in Lampkins' demotion and reduction in hours.
Because I am convinced that the various and overlapping liability theories
Lampkins presented at trial confused the jury and because no reasonable juror
could have concluded that Lampkins was subjected to a hostile work environment,
I will grant Mitra's request for a new trial on Lampkins' disparate treatment
claims. See Brown, 370 F. App'x at 270; Nissho-Iwai Co., 729 F.2d at 1538.
V.
CONCLUSION
For the reasons discussed above, I will grant Mitra's renewed motion for
judgment as a matter of law under FRCP 50(b) on Lampkins' hostile work
38
environment claims and a new trial on her remaining claims under FRCP 59(a). 7
As a result, Mitra' s request for judgment as a matter of law on Lampkins' punitive
damages claim and Mitra's alternative requests for a new trial on Lampkins'
hostile work environment claims and a reduction in the jury's punitive damages
award are rendered moot.
The Court will issue an order consistent with this Memorandum Opinion.
7
I also conditionally find, as required by FRCP 50( c)( 1), that, because the various
and overlapping liability theories Lampkins presented at trial undoubtedly
confused the jury, Mitra' s alternative request for a new trial on Lampkins' hostile
work environment claims should be granted if the judgment is later vacated or
reversed.
39
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