Mayer v. Professional Ambulance, LLC
Filing
26
MEMORANDUM AND ORDER granting in part and denying in part 14 Motion to Dismiss for Failure to State a Claim. So Ordered by Chief Judge William E. Smith on 9/30/2016. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
PROFESSIONAL AMBULANCE, LLC;
)
JOSEPH BAGINSKI, in his individual )
and professional capacity;
)
BRENDA BAGINSKI, in her individual )
and professional capacity;
)
MARTIN BAGINSKI, in his individual )
and professional capacity; and
)
JACQUELYN BAGINSKI, in her
)
individual and professional
)
capacity,
)
)
Defendants.
)
___________________________________)
ALLISON MAYER,
C.A. No. 15-462 S
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Before the Court is Defendants’ Motion to Dismiss.
(ECF No.
14.)
Plaintiff filed an Opposition (ECF No. 16), and Defendants
filed
a
Reply
(ECF
No.
17). 1
For
the
reasons that
follow,
Defendants’ Motion to Dismiss is GRANTED IN PART and DENIED IN
PART.
1
Plaintiff subsequently filed a Motion for Leave to File
Third Amended Complaint to add counts under the Rhode Island Fair
Employment Practices Act (“FEPA”), R.I. Gen 1956 § 28-5-1 et seq.
(ECF No. 22), which the Court granted. (07/14/2016 Text Order.)
As the Court stated in its Text Order, it considers the arguments
set forth in Defendants’ Motion to Dismiss with respect to
Plaintiff’s entire Third Amended Complaint. (Id.)
I.
Background
Plaintiff,
Allison
Mayer,
is
suing
her
former
employer,
Professional Ambulance, LLC, and its alleged principals, four
members of the Baginski family, for violations of the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 207(r) (the provision covering
breaks to express breast milk) and § 215(a)(3) (the provision
covering
retaliation);
the
Americans
with
Disabilities
Act
(“ADA”), 42 U.S.C. § 12112(a); Title VII of the Civil Rights Act
of 1964 (“Title VII”), 42 U.S.C. § 2000e; the Rhode Island Civil
Rights Act (“RICRA”), R.I. Gen. Laws § 42-112-1 et seq.; and the
Rhode Island Fair Employment Practices Act (“FEPA”), R.I. Gen 1956
§ 28-5-1 et seq.
Specifically, Plaintiff alleges that Defendants
failed to provide her with reasonable break time and an appropriate
place
to
express
breast
milk,
and
that
they
fired
her
in
retaliation for her requests and complaints concerning this issue.
The facts – as alleged by Plaintiff – are as follows. 2
On
February 11, 2015, Plaintiff interviewed for an EMT position with
Professional Ambulance, LLC.
(Third Am. Compl. ¶ 20, ECF No. 25.)
At the interview, Defendant Brenda Baginski (“Brenda”) seemed
impressed with Plaintiff’s prior experience as an EMT and pleased
that Plaintiff requested the night shift, which tends to be harder
2
As this is a motion to dismiss, all facts alleged by the
Plaintiff are taken to be true. See Rederford v. U.S. Airways,
Inc., 589 F.3d 30, 35 (1st Cir. 2009).
2
to staff.
(Id. ¶¶ 23-24.)
After meeting briefly with Defendant
Joseph Baginski (“Joseph”), Plaintiff was offered an EMT position
that would pay $14.00 per hour, and was told she would work 36
hours a week with three 12-hour overnight shifts.
(Id. ¶¶ 27-28.)
Plaintiff was scheduled to work the night shift on February 13 and
February 14, 2015.
(Id. ¶ 30.)
She was told that Martin Baginski
(“Martin”) would finalize her ongoing schedule, and she was given
her uniform.
(Id. ¶¶ 31-32.)
Plaintiff then informed Brenda that
she was still breastfeeding and that she would need to express
breast milk on breaks, but that she had done so at her prior
ambulance position without any incident.
(Id. ¶ 33.)
Brenda’s
“tone immediately changed” and she “coldly” told Plaintiff that
she could express milk in the bathroom.
(Id. ¶ 34.)
stated that an unsanitary bathroom was unsuitable.
Plaintiff
(Id. ¶ 35.)
Brenda did not seem pleased and then left the room to speak to
Joseph.
(Id.)
After a “long delay and an awkward return,” Brenda
stated that the only location available was Joseph’s office, which
Plaintiff describes as having “an interior window looking out on
[the] work area with only a flimsy window covering.”
37.)
(Id. ¶¶ 36-
According to Plaintiff, there was a “palpable change in
[Brenda]’s tone and behavior after [Brenda] spoke to [Joseph]
regarding Plaintiff’s need to take lactation breaks in a suitable
location.”
(Id. ¶ 38.)
Because Plaintiff was “[f]earful that
[Brenda] would change her mind about hiring Plaintiff due to her
3
sudden tone change, Plaintiff agreed to try the office location to
express milk.”
(Id. ¶ 39.)
Prior to her first night of work, Plaintiff attempted to
obtain her ongoing schedule, which she had been promised, so that
she could set up child care.
(Id. ¶¶ 31, 42.)
She was told that
“maybe” it would be provided to her the following day.
42.)
(Id. ¶
Plaintiff arrived for her first night of work on February
13, and she was still unable to obtain her schedule.
(Id. ¶ 43.)
According to Plaintiff, the environment was “sexist,” “women EMTs
were . . . degraded as compared to men,” and Joseph “did not accept
[] women EMTs as equals because females were not as ‘strong.’”
(Id. ¶¶ 44-46.)
Plaintiff further states that she was made to
feel uncomfortable about taking lactation breaks.
(Id. ¶ 45.)
When she did attempt to express milk in Joseph’s office, she “was
horrified to see that the sizable interior window had only a flimsy
blind, the room was not secure, and the walls were thin so male
workers could hear her pumping.”
(Id. ¶ 47.)
She specifically
heard men making comments about her pumping through the wall, and
thought she heard one of them say “tits” or “boobs.”
(Id. ¶¶ 50,
52.)
Plaintiff made several more requests to get her schedule, but
never received it.
(Id. ¶ 54.)
Plaintiff also “took it upon
herself to attain the necessary training,” which Defendants had
failed to schedule for her.
(Id. ¶ 56.)
4
During the training,
Plaintiff expressed a need to take a break for lactation and
complained to her shift supervisor, the Dispatcher, about “the
lack of a private, secure, sanitary room.”
(Id. ¶¶ 57, 59.)
She
indicated that Brenda and Joseph had claimed that no other rooms
were available.
(Id. ¶ 60.)
In response, the Dispatcher informed
Plaintiff about a conference room.
(Id.)
However, the conference
room, which was locked, had no heat and therefore “expressing milk
was too physically painful.”
“express
milk
again
that
(Id. ¶¶ 61-62.)
night
because
no
Plaintiff did not
suitable
location
existed” and “because she was made to feel uncomfortable about the
lactation breaks in the work environment . . . .”
(Id. ¶¶ 62-63.)
Later that night, Plaintiff found out she was not on the upcoming
week’s schedule.
(Id. ¶ 64.)
work that Tuesday.
She called Martin who said she could
(Id. ¶ 66.)
On Monday, February 16, Plaintiff was called by Jacquelyn
Baginski (“Jacquelyn”) who said she was terminated because there
were “‘multiple complaints’ from other employees about Plaintiff
being
‘rude
and
abrasive.’”
(Id.
¶¶
68-69.)
According
to
Plaintiff, she asked Jacquelyn, “may I ask what was said because
this has never happened before?” to which Jacquelyn responded, “no
you may not!”
(Id. ¶¶ 72-73.)
Plaintiff then went to meet with
Brenda, who gave her a check for the hours she had worked from the
business bank account (not a payroll check).
(Id. ¶¶ 74, 75.)
Brenda said the decision to let Plaintiff go had been unanimous.
5
(Id. ¶ 76.)
Brenda also said that Plaintiff could call her for
further explanation, but then Brenda did not return Plaintiff’s
call.
(Id. ¶¶ 79-81.)
Plaintiff
was
qualifications.
allegedly
(Id. ¶ 83.)
replaced
by
a
male
with
fewer
Plaintiff alleges she was unable to
produce breast milk after this incident due to the two shifts where
she was unable to pump as frequently as she needed to.
96.)
As a result, she had to switch her child to formula, which
caused
medical
distress.
II.
(Id. ¶
problems.
(Id.)
She
also
claims
emotional
(Id.)
Discussion
A.
29 U.S.C. § 207(r) (FLSA provision covering breaks to
express breast milk)
Section 207(r) of the FLSA requires that employers provide:
(A) 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; and
(B) a place, other than a bathroom, that is shielded
from view and free from intrusion from coworkers and the
public, which may be used by an employee to express
breast milk.
29 U.S.C. § 207(r)(1).
An employer is not “required to compensate
an employee receiving such reasonable break time [to express breast
milk] for any work time spent for such purpose.”
Id. § 207(r)(2).
Moreover, the FLSA limits liability for violations of Section
207(r) to “unpaid minimum wages.”
6
See id. § 216(b).
The Department of Labor (“DOL”) has explained that “[b]ecause
employers are not required to compensate employees for break time
to express breast milk, in most circumstances there will not be
any unpaid minimum wage or overtime compensation associated with
the failure to provide such breaks.”
Reasonable Break Time for
Nursing Mothers, 75 FR 80073-01 (December 21, 2010); see also Hicks
v. City of Tuscaloosa, No. 7:13-CV-02063-TMP, 2015 WL 6123209, at
*28 (N.D. Ala. Oct. 19, 2015) (“The toothlessness of § 207(r)(1)
was acknowledged by the Department of Labor in its Notice regarding
§ 207(r)(1).”).
Courts examining this issue have likewise held
that there is no cause of action under Section 207(r) absent a
claim for unpaid minimum wages or overtime.
2015 WL 6123209, at *28.
See, e.g., Hicks,
Indeed, Plaintiff concedes that “the
courts have sadly acknowledged that in most cases, even if a
violation is found, . . . there is no remedy unless the Plaintiff
alleges
unpaid
violation.”
minimum
wages
as
a
proximate
result
of
the
(Pl.’s Opp’n 8, ECF No. 16-1 (emphasis in original).)
She instead argues that courts have been wrong:
[A] sole private remedy of unpaid minimum wage and
overtime for violation of § 207(r) do not make sense
given that § 207(r) expressly states that lactation
breaks do not require compensation. . . . Thus, the law
as presently read, actually incentivizes employers to
immediately terminate any employee who invokes their
rights under § 207(r) before the employee can complain
and gain protection under § 215(a)(3) and thus lost wages
under § 216(b).
(Id. at 7, 8 (emphases in original).)
7
Moreover, in this case, Plaintiff argues that she is in fact
claiming unpaid minimum wages — the money she did not earn because
she was terminated.
Relying on Lico v. TD Bank, No 14-CV-4729
(JFB) (AKT), 2015 WL 3467159, at *3 (E.D.N.Y. June 1, 2015), in
which a mother was forced to miss scheduled work time to travel
home to express breast milk, Plaintiff likewise claims that she
lost wages based on Defendants’ promises regarding scheduling.
(Pl.’s Opp’n 12, ECF No. 16-1 (“As such, this Plaintiff is not
unlike the Plaintiff in Lico in that she was, at the time, employed
by the employer, promised a certain schedule, and due to the
employer’s refusal to comply with
§ 207(r), Plaintiff was
unable to earn the money she was scheduled to earn and would have
but for the employers’ unlawful acts.” (emphasis in original).)
In particular, Plaintiff notes that, when she was terminated, she
“was formally scheduled for the shift [on] Tuesday, February 17,
2015 but was deprived of working the already-scheduled shift based
on the employer[’]s refusal to comply with § 207(r).”
(Id.)
Plaintiff also relies on Valerio v. Putnam Assocs. Inc., 173
F.3d 35 (1st Cir. 1999), to argue that the Court should interpret
the language of the FLSA broadly — in this case, that “unpaid
minimum
wages”
includes
future
wages
not
earned
because
the
employee was terminated. Valerio considered what the phrase “filed
any complaint” meant in the FLSA’s retaliation provision.
41.
Id. at
The Court there found that “any complaint” could include an
8
internal complaint, reasoning that deciding otherwise would have
the “bizarre effect” of “creating an incentive for the employer to
fire an employee as soon as possible after learning the employee
believed
he
was
being
treated
illegally.”
Id.
at
41,
43.
According to Plaintiff, “[t]he exact same logic applies to the
construing [of] unpaid minimum wages to include ‘lost wages’ and
‘equitable relief’ for employees terminated [] as soon as the
employer learns the employee will be requesting accommodation
under § 207(r).”
(Pl.’s Opp’n 15, ECF No. 16-1.)
Defendants counter with Hicks, in which the District Court
for the Northern District of Alabama held that lost wages due to
a demotion that was, at least in part, based on the defendant’s
failure to provide reasonable breaks and a place to express breast
milk, were not recoverable under Section 207(r).
(Defs.’ Mot. to
Dismiss 8, ECF No. 14); see Hicks, 2015 WL 6123209, at *28-29.
The court in Hicks noted that “it does not appear that the statute
prohibits
termination
or
provides
related
to
a
remedy
for
breastfeeding;
an
allegedly
rather,
by
its
wrongful
express
terms, it remedies only the employer’s failure to provide unpaid
break time for breastfeeding during actual employment.”
2015 WL 6123209, at *29.
Hicks,
In a footnote, the court “acknowledge[d]
the absurdity of this conclusion” in that “[a]n employer faced
with a request to allow an employee to take breaks to breastfeed
may simply fire the employee rather than attempt to accommodate
9
the request for breaks,” yet concluded “[n]evertheless, [that] the
language in § 207(r)(1) and § 216(b) is clear.
Break time and a
nursing room are all that is required under the FLSA, and even if
those are denied, the only remedy is for unpaid minimum wage or
overtime pay.”
Id. at *29 n.14.
The court added that “[o]f
course, protection against such a termination may be found under
the Pregnancy Discrimination Act [“PDA”] . . . which provides a
much broader and more robust remedy.”
Id.
The case law and guidance from DOL make clear that the only
remedy for a violation of Section 207(r) is for unpaid minimum or
overtime wages. The only question to decide, therefore, is whether
the hours that were allegedly scheduled, but not worked because of
Plaintiff’s termination, count as “unpaid minimum wages.”
Based
on the reasoning in Hicks and the plain language of the statute,
the Court finds that they do not.
to
Plaintiff’s
argument
While the Court is sympathetic
that
this
renders
Section
207(r)
ineffective, there is no support from the case law or DOL for
extending “unpaid minimum wages” to wages that would have been
earned but for a termination.
termination
can
be
found
Instead, a remedy for unlawful
under
state
discrimination laws, as explained below.
10
and
federal
anti-
B.
29
U.S.C.
retaliation)
§
215(a)(3)
(FLSA
provision
covering
Section 215(a)(3) of the FLSA prohibits retaliation against
employees who exercise their rights under the Act, providing that
“it shall be unlawful for any person . . . to discharge or in any
other
manner
discriminate
against
any
employee
employee has filed any complaint. . . .”
because
such
29 U.S.C. § 215(a)(3).
To establish a prima facie claim of retaliatory termination, a
plaintiff
protected
“must
demonstrate
activity,
the
fact
his
of
engagement
his
dismissal,
connection between the former and the latter.”
Wareham, 316 F.3d 18, 23 (1st Cir. 2002).
Gobain
Performance
construed
the
complaints.
Plastics
phrase
“filed
Corp.,
any
563 U.S. 1, 14 (2011).
in
the
statutorily
and
a
causal
Kearney v. Town of
In Kasten v. SaintU.S.
complaint”
to
Supreme
include
Court
oral
However, “not all abstract
grumblings will suffice to constitute the filing of a complaint
with one’s employer.”
Valerio, 173 F.3d at 44.
To qualify for
protection, the complaint must be “sufficiently clear and detailed
for a reasonable employer to understand it, in light of both
content and context, as an assertion of rights protected by the
statute and a call for their protection.”
Kasten, 563 U.S. at 14.
Defendants’ primary argument is that Plaintiff has not pled
that she ever “put [Defendants] on notice that [she] was asserting
her statutory rights.”
(Defs.’ Mot. to Dismiss 9, ECF No. 14.)
11
They further contend that there was no violation of the statute as
both options Plaintiff was provided — Joseph’s office and the
conference room — were sufficient.
Plaintiff identifies two separate complaints.
Opp’n 18-19, ECF No. 16-1.)
(See Pl.’s
She first complained to Brenda that
the bathroom would be unsuitable for expressing breast milk.
at 18.)
(Id.
Plaintiff posits that “[r]ejecting the bathroom location
was the initial act that set in motion the immediate retaliation.”
(Id. (emphasis in original).)
Plaintiff next alleges that she
complained to the Dispatcher, who was the night shift supervisor,
during her second shift that the room that had been provided for
her to express breast milk — which she had been told was the only
room available — was inadequate because it was not sufficiently
private.
Ultimately, the Court finds that Plaintiff has — at this stage
—
pled
sufficient
retaliation.
facts
to
create
a
plausible
claim
for
Whether the complaints she alleges are sufficiently
clear to put Defendants on notice of her claims will be a question
of fact for down the road.
According to Plaintiff, Defendants at
first seemed pleased to hire her because it was difficult to find
employees who wanted to take the night shift.
However, as soon as
she requested breaks for expressing breast milk and rejected the
bathroom option, their tone allegedly changed.
From that point
forward, they refused to give her a schedule, did not schedule her
12
for necessary training, and fired her after two shifts, purportedly
because they had received complaints about rude comments she had
made. However, when she asked what the comments were, they refused
to tell her.
Finally, when she was paid, it was with a business,
rather than payroll, check, which Plaintiff suggests means they
had never intended to keep her on staff once she made her request.
With respect to the sufficiency of the room provided under Section
207(r), that is also a question for a later date.
Based on what
Plaintiff described, she states a plausible claim that it was not
“private” and “free from intrusion.”
C.
FLSA Violations against Individual Defendants
Defendants further argue that, even if the FLSA claims go
forward,
they
should
be
dismissed
against
the
individual
defendants — Joseph, Brenda, Jacqueline, and Martin — because
Plaintiff has not adequately alleged that they were her “employer”
under the FLSA.
Defendants contend that Plaintiff’s allegations
that “upon information and belief,” the four individual defendants
are each an “owner, co-owner, and/or senior leadership” are mere
“labels and conclusions” that do not pass muster under Ashcroft v.
Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007).
(Defs.’ Mot. to Dismiss 12, ECF No. 14.)
However, they present no authority holding that these types of
allegations cannot be made on information and belief.
The only
case they do cite found that a “senior employee” who was neither
13
a “high-level corporate officer” nor had an ownership interest in
the company was not an employer under the FLSA.
See Manning v.
Boston Med. Ctr. Corp., 725 F.3d 34, 50 (1st Cir. 2013).
contrast,
Plaintiff
has
alleged
that
all
four
Here, by
individual
defendants not only had an ownership interest, but ran the dayto-day operations of the business.
Thus, this case is different
from this Court’s recent decision in Levi v. Gulliver’s Tavern
Inc., where it was unclear whether the defendants were merely
absentee owners with little or no day-to-day involvement.
No. CV
15-216
2016).
S,
2016
WL
552469,
at
*2-3
(D.R.I.
Feb.
10,
Accordingly, the Court denies Defendants’ request to dismiss the
FLSA claims against the individual defendants.
D.
Sex Discrimination under Title VII, RICRA, and FEPA
1. Discriminatory Discharge
Title VII, RICRA, and FEPA all prohibit employers from taking
an adverse employment action against an employee on the basis of
the
individual’s
sex,
including
on
the
childbirth, or related medical conditions.
basis
of
pregnancy,
42 U.S.C.A. § 2000e-
2, 2000e(k); R.I. Gen. Laws § 28-5-6, § 28-5-7(1)(i),(ii), § 285-7.4(b)(2), § 42-112-1(a).
A threshold question is therefore
whether lactation is a “related medical condition[]” to pregnancy.
FEPA explicitly states that “‘[r]elated conditions’ includes, but
is not limited to, lactation or the need to express breast milk
14
for a nursing child.”
R.I. Gen. Laws § 28-5-7.4(b)(2).
However,
under Title VII and RICRA, the answer is less clear.
Defendants claim that “[a] majority of courts have declined
to afford protected status to women by virtue of their status as
nursing mothers, finding that lactation is a child care choice
rather
than
a
medical
condition
experienced
by
the
mother.”
(Defs.’ Mot. to Dismiss 13, ECF No. 14 (emphasis in original).)
However,
they
cite
only
one
case
in
support
of
this
broad
proposition — Falk v. City of Glendale, No. 12-CV-00925-JLK, 2012
WL 2390556 (D. Colo. June 25, 2012).
the
Fifth
Circuit
recently
held
Defendants acknowledge that
that
a
woman’s
status
as
a
lactating mother is afforded protected status under Title VII, see
EEOC v. Houston Funding II, Ltd., 717 F.3d 425, 428 (5th Cir.
2013), but characterize it as a “minority decision.”
(Defs.’ Mot.
to Dismiss 13, ECF No. 14.)
As Plaintiffs point out, however, the trend post-Houston
Funding — including Hicks, on which Defendants rely heavily for
their FLSA arguments — has been to follow the Fifth Circuit’s
reasoning and hold that lactation is a “condition related to
pregnancy” under the PDA.
See, e.g., Allen-Brown v. D.C., No. CV
13-1341 (RDM), 2016 WL 1273176, at *11 (D.D.C. Mar. 31, 2016)
(“Although the D.C. Circuit has yet to address this question, the
Court finds the Fifth Circuit’s analysis in [Houston Funding]
persuasive.”); Hicks, 2015 WL 6123209, at *19 (“The court agrees
15
that lactating is a medical condition related to pregnancy and
childbirth, and that a lactating employee may not be treated
differently in the workplace from other employees with similar
abilities to work.
Thus, a female employee may not be discharged
or otherwise disciplined simply because she is lactating.”); EEOC
v. Vamco Sheet Metals, Inc., No. 13 CIV. 6088 JPO, 2014 WL 2619812,
at *6 (S.D.N.Y. June 5, 2014) (finding that allegations that the
plaintiff “was harassed for taking lactation breaks and eventually
terminated . . . may be able to state a claim for disparate
treatment under Title VII”); Martin v. Cannon Bus. Sols., Inc.,
No. 11-CV-02565, 2013 WL 4838913 at *8 (D. Colo. Sept. 10, 2013)
(“[T]he Court agrees with a recent decision of the Fifth Circuit
in which it held that ‘discriminating against a woman who is
lactating or expressing breast milk violates Title VII and the
PDA.’” (quoting Houston Funding, 717 F.3d at 430)).
Falk — which was decided before Houston Funding — is also
distinguishable.
There, Plaintiff asserted that her “desire to
‘continue to breast feed her infant daughter’ formed the basis for
the alleged discrimination,” rather than claiming that lactation
was a medical condition related to pregnancy.
2390556, at *3.
Falk, 2012 WL
Indeed, the court acknowledged that “a plaintiff
could potentially succeed on a claim if she alleged and was able
to
prove
that
lactation
was
a
medical
condition
related
to
pregnancy, and that this condition, and not a desire to breastfeed,
16
was the reason for the discriminatory action(s) that she suffered.”
Id.
Moreover, in Falk, the plaintiff also alleged that she had
not been provided restroom breaks before she got pregnant; thus,
the court found that this “appears to be a case about workplace
conditions, and not about discrimination.”
Id. at *4.
Moreover, EEOC guidance issued in June 2015 states that
“lactation is a pregnancy related medical condition” and thus “less
favorable treatment of a lactating employee may raise an inference
of
unlawful
Pregnancy
§
discrimination.”
Discrimination
and
EEOC
Enforcement
Related
Issues,
(I)(A)(4)(b),
Guidance
June
25,
available
for
2015
at
http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.
Absent contrary guidance from the First Circuit, this Court
follows the Houston Funding decision and EEOC guidance, and finds
that lactation is a medical condition related to pregnancy, and
therefore covered under Title VII and RICRA.
To establish a prima facie case of discriminatory discharge,
a plaintiff must show:
(1) she is a member of a protected class; (2) she was
performing her job at a level that rules out the
possibility that she was fired for inadequate job
performance; (3) she suffered an adverse job action by
her employer; and (4) her employer sought a replacement
for her with roughly equivalent qualifications.
Smith v. Stratus Computer, Inc., 40 F.3d 11, 15 (1st Cir. 1994).
17
Defendants
argue
that,
even
assuming
Plaintiff
is
awarded
protection as a lactating mother, she “does not (and cannot) allege
that she was performing her position satisfactorily because she
had only worked a total of two days before she was discharged and
had never been evaluated by Professional Ambulance.”
(Defs.’ Mot.
to Dismiss 14, ECF No. 14 (emphasis in original).)
As Plaintiff
points out, Defendants cite no authority for their assertion that
a
plaintiff
cannot
performance review.
show
satisfactory
performance
prior
(Pl.’s Opp’n 41-42, ECF No. 16-1.)
to
a
Indeed,
if this were true, an employer would be free to fire employees for
discriminatory reasons as long as they had not yet been formally
evaluated.
Defendants
further
contend
that
Plaintiff
has
pled
insufficient facts to make any causal link between her status as
a lactating mother and her termination.
The Court disagrees.
Reading the Complaint in the light most favorable to Plaintiff –
as required at this stage - a reasonable inference can be drawn
that her termination was based on her lactation requests.
As an
initial matter, the First Circuit has held that close temporal
proximity is sufficient to show causation at the prima facie stage.
See, e.g., Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 25
(1st
Cir.
2004)
(“The
facts
demonstrate
sufficient
temporal
proximity between the protected conduct and the employment action
in this case to make out a prima facie case.”).
18
Here, Plaintiff
was fired several days after her allegedly protected activity.
Furthermore, she pled that Brenda’s tone changed completely when
she made her initial request.
Finally, while Defendants told
Plaintiff that they had received complaints about her, when she
asked what the complaints were, she was told “No you may not
[ask]!”
(Pl.’s Opp’n 44, ECF No. 16-1.)
This is sufficient to
get past a motion to dismiss.
2. Failure to Accommodate under FEPA
FEPA
contains
an
affirmative
obligation
to
“reasonably
accommodate an employee’s or prospective employee’s . . . need to
express breast milk for a nursing child, if she so requests, unless
the employer can demonstrate that the accommodation would pose an
undue
hardship
business.”
on
the
employer’s
program,
R.I. Gen. Law § 28-5-7.4(a)(1). 3
enterprise,
or
Here, Defendants
claim that they did reasonably accommodate Plaintiff.
(See Defs.’
Opp’n to Pl.’s Mot. to Amend 5, ECF No. 23-1 (“Plaintiff has not
alleged, much less established that Defendants ever refused to
3
Title VII, by contrast, contains no such affirmative
obligation. See, e.g., EEOC v. Houston Funding II, Ltd., 717 F.3d
425, 430 (5th Cir. 2013), (“[N]othing in this opinion should be
interpreted as precluding an employer’s defense that it fired an
employee because that employee demanded accommodations.”); Hicks
v. City of Tuscaloosa, No. 7:13-CV-02063-TMP, 2015 WL 6123209, at
*20 (N.D. Ala. Oct. 19, 2015) (“[U]nder the PDA, an employer is
not required to treat breastfeeding or lactating employees better
tha[n] it would treat non-lactating employees under similar
circumstances, as long as it does not treat them worse.” (emphasis
in original)).
19
provide
Plaintiff
breast milk.
with
a
reasonable
accommodation
to
express
On the contrary, the Third Amended Complaint alleges
that Plaintiff was actually provided two separate locations in
which to express breast milk – Joseph Baginski’s office and a
conference room with a lock.”).)
Whether the offer of Joseph’s
office, which Plaintiff alleges had “only a flimsy window covering”
(Third Am. Compl. ¶ 37, ECF No. 25) and the conference room, which
Plaintiff claims was “extremely cold with no heat in the middle of
the
cold
February
weather”
(id.
¶
61),
were
reasonable
accommodations is a question of fact for a later date.
At this
stage, Plaintiff has stated a plausible claim.
3. Hostile Work Environment
To state a hostile work environment claim, a plaintiff must
demonstrate: “(1) membership in a protected class and (2) unwelcome
sexual harassment, (3) which was based on sex, (4) was sufficiently
severe
or
pervasive,
(5)
was
objectively
and
subjectively
offensive, and finally (6) that some basis for employer liability
has been established.”
7,
17
(1st
Cir.
Gerald v. Univ. of Puerto Rico, 707 F.3d
2013).
Whether
an
allegedly
hostile
work
environment is sufficiently severe or pervasive is a question of
fact.
See Gorski v. New Hampshire Dep’t of Corr., 290 F.3d 466,
474 (1st Cir. 2002) (“Subject to some policing at the outer bounds,
[the hostile work environment] question is commonly one of degree
20
- both as to severity and pervasiveness - to be resolved by the
trier of
fact . . . .”).
The crux of Plaintiff’s hostile work environment claim is
that while she was in Joseph’s office pumping breast milk, she
could
hear
her
male
coworkers
laughing
and
including something about “tits” or “boobs.”
making
comments,
Plaintiff also
alleges that the environment as a whole seemed “sexist,” that
“women were degraded as compared to men,” and that Joseph Baginski
made it known that he thought female EMTs were not equal to men
because they were not as “strong.”
ECF No. 25.)
(Third Am. Compl. ¶¶ 44-46,
She further claims that the refusal to give her a
schedule and training added to the hostile work environment.
Finally, Plaintiff notes that the fact that all of this activity
occurred
over
only
two
shifts
bolsters
her
claim
that
the
environment was pervasive.
Defendants
argue
that
“[o]ther
than
[Plaintiff]’s
single
allegation that she ‘believed’ she heard a comment about ‘boobs,’
[Plaintiff] does not allege conduct that is objectively offensive
or directed at her sex.
A discussion of pumping breast milk is
neither ‘harassment’ nor is it directed at ‘sex.’”
to Dismiss 19, ECF No. 14.)
(Defs.’ Mot.
They also claim that “a one-time
incident on her first day of work, [is] insufficiently severe or
pervasive to be actionable.”
(Id.)
They do not, however, cite
any cases in support of their contention that these comments are
21
insufficient
to
survive
a
motion
to
dismiss
a
hostile
work
environment claim.
Although somewhat of close call, the Court finds that based
facts pled in the Complaint, Plaintiff’s claim that the environment
was hostile is plausible.
First, harassment based on pregnancy is
covered under Title VII.
See Gorski, 290 F.3d at 473-74 (denying
motion
to
dismiss
hostile
work
environment
claim
based
on
“derogatory comments about [Plaintiff’s] pregnancy so as to give
rise to a sexually hostile working environment”).
Because this
Court finds that lactation is a medical condition related to
pregnancy, the alleged comments about Plaintiff’s pumping could
contribute to a hostile work environment.
Second, while Defendants are correct that, in general, one
incident is insufficient to support a hostile work environment
claim, because of Plaintiff’s very short tenure in this case, the
Court declines to find as a matter of law that the conduct alleged
in the Complaint was not severe and pervasive given the amount of
time she worked there.
It is important to keep in mind that this
is a motion to dismiss, not summary judgment.
See id. at 472, 474
(“The issue presently before us, however, is not what the plaintiff
is required ultimately to prove in order to prevail on her claim,
but rather what she is required to plead in order to be permitted
to
develop
her
case
for
eventual
adjudication
on
the
merits . . . . It is not necessary at this point to decide whether
22
the plaintiff could sustain a hostile work environment claim if
the factual evidence she could marshal at trial were limited to
the
facts
alleged
original)).
in
the
amended
complaint.”
(emphasis
in
Depending on what discovery yields, this claim may
ultimately not survive, but that is question for another day.
E.
Disability Discrimination under the ADA, RICRA, and FEPA
To establish a prima facie case of disability discrimination,
Plaintiff must prove the following three elements:
(1) that she was disabled within the meaning of the
[relevant statute];
(2) that she was qualified to perform the essential
functions of the job, with or without a reasonable
accommodation; and
(3) that she was discharged or adversely affected
because of the disability.
Ruiz Rivera v. Pfizer Pharmaceuticals, LLC, 521 F.3d 76, 82 (1st
Cir. 2008); DeCamp, 875 A.2d at 25.
In 2008, Congress broadened
the definition of a disability under the ADA.
A disability is now
defined as “a physical or mental impairment that substantially
limits one or more major life activities of [an] individual.” Lang
v. Wal-Mart Stores E., L.P., No. 13-CV-349-LM, 2015 WL 1523094, at
*2 (D.N.H. Apr. 3, 2015) (quoting 42 U.S.C. § 12102(1)(C)).
FEPA
and RICRA likewise “define disability to include ‘any physical or
mental impairment which substantially limits one or more major
life activities.’”
Poulin v. Custom Craft, Inc., 996 A.2d 654,
657 (R.I. 2010) (quoting G.L.1956 § 42-112-1; G.L.1956 § 28-56(4)(ii)).
23
Courts have generally held that normal pregnancy and postpregnancy do not qualify as a disability.
See, e.g., Lang, 2015
WL 1523094, at *2 (“ADA cases decided after the effective date of
the ADAAA [2008 Amendment], [] generally hold that pregnancy is
not
an
actionable
disability,
unless
it
is
accompanied
by
a
pregnancy-related complication.” (emphasis in original)); Annobil
v. Worcester Skilled Care Ctr., Inc., No. CIV.A. 11-40131-TSH,
2014 WL 4657295, at *11 (D. Mass. Sept. 10, 2014) (“Being pregnant,
in and of itself, is not a handicap.”); Dantuono v. Davis Vision,
Inc., No. 07-CV-2234 TCP ETB, 2009 WL 5196151, at *4 (E.D.N.Y.
Dec. 29, 2009) (“Only in rare cases — where there are pregnancy
complications — has pregnancy been held to be a disability under
the ADA.”).
Plaintiff argues that the cases Defendants cite are
non-binding and some were decided prior to the 2008 amendment;
however, she does not point to any cases post-2008 amendment
holding that normal lactation is a disability.
Plaintiff alternatively tries to get around the case law by
arguing that she has also pled “lactation dysfunction.”
Opp’n 32, ECF No. 16-1.)
(Pl.’s
As Defendants note in their Reply, this
was not pled in the Complaint, which merely stated that “she had
been struggling to keep her breast milk supply up,” but had been
able to “maintain her supply.”
(Defs.’ Reply 9, ECF No. 17
(quoting 2nd Am. Compl. ¶ 81).)
Nor does Plaintiff explain how
the alleged “lactation dysfunction” meets the definition of a
24
disability under the ADA.
Accordingly, Plaintiff’s disability
discrimination claims are dismissed.
III. Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss is
GRANTED IN PART and DENIED IN PART.
Specifically, Defendants’
Motion is GRANTED with respect to Count One (Violation of Section
207(r) of the FLSA), and Counts Five, Six, and Ten (Disability
Discrimination in Violation of the ADA, RICRA, and FEPA); it is
DENIED with respect to the remainder of Plaintiff’s counts.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: September 30, 2016
25
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