United States District Court, D. Arizona
HONORABLE CINDY K. JORGENSON UNITED STATES DISTRICT JUDGE.
before the Court is Defendant City of Tucson's Motion for
Summary Judgment (DMSJ, Doc. 115) and Plaintiff Carrie
Ferrara Clark's Cross-Motion for Summary Judgment (PCMSJ,
Doc. 117). Both parties have filed responses (Pl's Resp.
MSJ, Doc. 122; Def's Resp. CMSJ, Doc. 124) and replies
(Pl's Rep. CMSJ, Doc. 127; Def's Rep. MSJ, Doc. 126).
The Court grants Defendant's Motion in part and denies
complaint relates to her employment at Tucson Fire Department
(“TFD”). Plaintiff alleges that after the birth
of her first child, TFD failed to provide her appropriate
accommodations for expressing breastmilk. Once she filed a
complaint about the lack of facilities, this allegedly led to
a series of discriminatory and retaliatory actions by TFD.
Plaintiff raises six claims in her Third Amended Complaint.
They include: (1) sex discrimination in violation of 29
U.S.C. § 207(r) for failing to provide a statutorily
compliant space for Plaintiff to express milk; (2)
retaliation in violation of 29 U.S.C. § 215 for
adversely acting against Plaintiff after she reported that
TFD did not have appropriate space for lactating mothers; (3)
retaliation in violation of Title VII for moving
Plaintiff's husband to a less desirable position in
response to Plaintiff's wrongful conduct complaint
pertaining to a hostile work environment; (4) retaliation in
violation of Title VII for arbitrarily moving Plaintiff to
inferior assignments because of Plaintiff's wrongful
conduct complaints; and (5) sex discrimination in violation
of Title VII of the Civil Rights Act of 1964. (Third Amended
Complaint (“TAC”) Doc. 87 at 20-23.)
Defendant's Motion for Summary Judgment challenges the
adequacy of all counts, and Plaintiff's Cross-Motion for
Summary Judgment counters that all counts should be
determined in her favor.
of Defendant's Response to Cross-Motion for Summary
preliminary matter, Plaintiff argues that Defendant's
Response to Plaintiff's Cross-Motion for Summary Judgment
should be stricken as untimely. (Pl's Rep. CMSJ, Doc. 127
makes similar summary judgment arguments in both its Motion
for Summary Judgment (DMSJ, Doc. 115) and its Response to
Defendant's Cross Motion for Summary Judgment (Def's
Resp. CMSJ, Doc. 124). Since Defendant's arguments will
still be considered via Defendant's Motion for
Summary Judgment, and Plaintiff must still show there is no
genuine issue of material fact, striking the filing is of no
benefit to the Plaintiff. See Martinez v. Stanford,
323 F.3d 1178, 1182-83 (9th Cir. 2003) (despite party's
failure to timely file a response to motion for summary
judgment, the moving party still has an “affirmative
duty under [Fed.R.Civ.P.] 56 to demonstrate its entitlement
to judgment as a matter of law”).
the Court finds Defendant's filing useful in summarizing
Plaintiff's own allegations. Plaintiff's claims are
vague; they often fail to specifically allege which actions
apply to which counts. Plaintiff lists instances which she
believes support her claims, but at times does not clearly
explain who she believes is the actor, what is the adverse
action, how there is causation, or why an action should be
considered pretext.And while it appears that Plaintiff would
like every single factual allegation to apply to each count,
the allegations must be assessed through the lens of the
statutory framework-not all facts plausibly apply in the same
manner to each count. Further, the Court notes the response
is eight hours late and there is no prejudice to Plaintiff.
The Court will consider Defendants' response.
must grant summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). A genuine dispute
exists “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
movant bears the initial responsibility of presenting the
basis for its motion and identifying those portions of the
record, together with affidavits, if any, that it believes
demonstrate the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323. If the moving party
carries “the burden of proof on an issue at trial, the
movant must affirmatively demonstrate that no reasonable
trier of fact could find other than for the moving
party.” Soremekun v. Thrifty Payless, Inc.,
509 F.3d 978, 984 (9th Cir. 2007). But, if the burden rests
on the non-moving party, “the moving party need only
prove that there is an absence of evidence to support the
non-moving party's case.” In re Oracle
Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir.
movant fails to carry its initial burden of production, the
nonmovant need not produce anything. Nissan Fire &
Marine Ins. Co., Ltd. v. Fritz Co.,
Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But,
if the movant meets its initial responsibility, the burden
shifts to the nonmovant to demonstrate the existence of a
factual dispute and that the fact in contention is material,
i.e., a fact that might affect the outcome of the suit under
the governing law, and that the dispute is genuine.
Anderson, 477 U.S. at 248, 250; see Triton
Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th
Cir. 1995). The nonmovant need not establish a material issue
of fact conclusively in its favor, First Nat'l Bank
of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89
(1968); however, it must “come forward with specific
facts showing that there is a genuine issue for trial.”
Fed.R.Civ.P. 56(c)(1); see Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
summary judgment, the judge's function is not to weigh
the evidence and determine the truth but to determine whether
there is a genuine issue for trial. Anderson, 477
U.S. at 249. In its analysis, the court must believe the
nonmovant's evidence and draw all inferences in the
nonmovant's favor. Id. at 255. However,
“[w]here the parties file cross-motions for summary
judgment, the court must consider each party's evidence,
regardless under which motion the evidence is offered.”
Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532
(9th Cir. 2011). In this instance, the District Court
“review[s] each motion . . . separately, giving the
nonmoving party for each motion the benefit of all reasonable
inferences.” Brunozzi v. Cable Commc'ns,
Inc., 851 F.3d 990, 995 (9th Cir. 2017), cert.
denied, 138 S.Ct. 167 (2017). In addition, the court may
consider Plaintiff's evidence from its cross-summary
judgment motion to determine defendant's summary judgment
motion, and vice versa. See Fair Hous. Council v.
Riverside Two, 249 F.3d 1132, 1136-37 (9th Cir. 2001).
court need consider only the cited materials, but it may
consider any other materials in the record. Fed.R.Civ.P.
56(c)(3). If, after considering the arguments and materials
in the record, it appears that jurors of reason could find by
a preponderance of the evidence that the defendant is liable,
then the court should not grant summary judgment.
Cornwell v. Electra Cent. Credit Union, 439 F.3d
1018, 1027-28 (9th Cir. 2006). If, however, jurors of reason
could not determine that plaintiff is entitled to a judgment
in her favor, then summary judgment is appropriate.
One: Sex Discrimination Under Fair Labor Standards Act, 29
USC. § 207(r)
first claim alleges that TFD did not provide appropriate
accommodations for her to express milk for her child. Under
§ 207(r) of the Fair Labor Standards Act
(“FLSA”), as amended by the Patient Protection
and Affordable Care Act, employers must provide a suitable
space and time for nursing for a period of one year
subsequent to the birth of a child. 29 U.S.C. § 207(r).
The space must be “a place, other than a bathroom, that
is shielded from view and free from intrusion from coworkers
and the public.” 29 U.S.C. § 207(r)(1). A
plaintiffs damages are limited to “lost wages
attributable to the § 207(r) violation.” Lico
v. TD Bank, No. CV 14-4729-JFB-AKT, 2015 WL 3467159 at
*3 (E.D.N.Y. June 1, 2015); Mayer v. Prof l Ambulance,
LLC, 211 F.Supp.3d 408, 413 (D.R.I. 2016); see also
Hicks v. City of Tuscaloosa, No. CV 13-02063-TMP, 2015
WL 6123209 at *28-29 (N.D. Ala. Oct. 19, 2015); Frederick
v. New Hampshire, No. CV 14-403-SM, 2015 WL 5772573 at
*7 (D.N.H. Sept. 30, 2015).
claims that her station assignments upon returning from
maternity leave (between October 27, 2013 and March 23, 2013)
did not comport with the lactation requirements under the
FLSA. (TAC, Doc. 87 at 19.) Plaintiff contends that the
following facts are admissions that TFD did not comply with
the statute, so there is no disputed issue of fact that
Defendant violated § 207(r), and the Court should grant
summary judgment in Plaintiffs favor. (PCMSJ, Doc. 117 at 3;
Pl's Resp. MSJ, Doc. 122 at 5.)
Plaintiff notes that TFD freely admits it did not have a
policy for expressing milk in place prior to July 19, 2013,
nor had it implemented a procedure for employees to submit
requests for space accommodations for expressing milk.
(Id.) Furthermore, on March 22, 2013, the Equal
Opportunity Programs Division
(“EOPD”) determined that only nine of twenty-one
TFD fire stations were compliant with FLSA. (PCMSJ, Doc. 117
at 3.) The evaluation, entitled “American Fair Labor
Standards Act Section 7 Compliance, ” stated that
Stations 3, 9, 10, 12, and 18-22 did not meet FLSA standards.
(Exh. Q, Doc. 118-1 at 129.) The document, however, notes
that all of these stations possessed a dorm, study, or
private room that would be in compliance if
there was a lock on the door. (Id.)
further proof of noncompliance, Plaintiff submits a series of
emails between TFD staff documenting the need for-and
subsequent installation of-a lock at Station 6 (Exhs. N-O,
Doc. 118-1 at 121-123), work orders for the other stations
listed as noncompliant in the EOPD evaluation, and a
memorandum from Fire Chief Jim Critchley (Exh. VVVV, Doc.
123-1 at 106-117). All of these specifically concede that the
stations are not compliant with the nursing mothers'
space requirement. (Id. at 106-119.) Because
Defendant never challenged the EOPD determination prior to
the filing of the instant action, and admits noncompliance in
its own correspondence, Plaintiff submits summary judgment is
appropriate. (Pl's Rep. CMSJ, Doc. 127 at 4.)
also states that after her return from maternity leave, she
was assigned to “swing shift.” This meant she was
not assigned to a consistent station. (Pl's Resp. MSJ,
Doc. 122 at 2.) While on swing shift, she was assigned to
several noncompliant stations. (Id.) This situation
forced her to use sick leave in order to avoid working at
stations where she would be unable to express milk in
summary judgment motion counters that Plaintiff's
assignment to swing shift did not violate FLSA because
§207(r) does not require preferential assignment to
stations (i.e. an assignment to one station), but simply an
appropriate lactating area at the assigned station. (DMSJ,
Doc. 115 at 6.) Plaintiff admits she was assigned to swing
shift prior to her nursing needs. (Pl's Resp. MSJ, Doc.
122 at 4.) She also concedes she is not afforded the right to
preferential station assignments. (Id. at 4-5.)
Plaintiff further professes that “being on swing shift
would not have been an issue for Plaintiff had all of
TFD's stations had space for mothers expressing
breastmilk that complied with federal law.”
(Id. at 5.) Therefore, the contested issue here is
not whether her assignment to swing shift was a violation,
but rather whether the stations to which Plaintiff was
assigned were adequate under the FLSA guidelines.
claims it only assigned Plaintiff to stations that complied
with the requirements under the FLSA. (DMSJ, Doc. 115 at 6.)
Defendant theorizes that the EOPD findings are not
dispositive of Defendant's legal compliance with FLSA.
(Id. at 2-3.) Furthermore, the EOPD's findings
do not contradict Defendant's claims of legal compliance
because the evaluation simply determined that the stations
were noncompliant because the designated rooms did not have
door locks. (Id.) Defendant agrees there were no
locks, but contends that the spaces provided were “free
from intrusion” and “shielded from view.”
(Id. at 2.) Therefore the stations were compliant
with the statute despite the lack of a door lock.
(Id. at 2.)
argues that Defendant needed to have a lock for compliance
because the Department of Labor's (“DoL”)
Reasonable Break Time for Nursing Mothers states “the
employer must ensure the employee's privacy through means
such as signs that designate when the space is in use,
or a lock on the door.” 75 Fed. Reg. 80073-01
(emphasis added). (Pl's Rep. CMSJ, Doc 127 at 5.)
Court finds that whether the stations Plaintiff was assigned
to-both those she actually worked at and those for which she
was assigned but used sick leave to avoid- violated the FLSA
raises a genuine issue of material fact. To be compliant, the
stations needed to provide a space “shielded from view
and free from intrusion from coworkers and the public.”
29 U.S.C. § 207(r)(1). The EOPD evaluation suggests that
every noncompliant station did have a private space, which
may or may not qualify as free from intrusion. (Exh. Q, Doc.
118-1, at 129.)
DoL's Reasonable Break Time for Nursing Mothers indicates
a variety of ways that an employer may provide appropriate
space, and not all of them require a lock. Some acceptable
spaces provide neither a space designated solely for
expressing milk, nor an isolated space. For example, the
. “The employer is not obligated to
maintain a permanent, dedicated space for nursing
. “[A]n anteroom or lounge area
connected to the bathroom may be sufficient to meet the
requirements of the law. For example, if there is a wall with
a door separating the lounge area from the bathroom, and if
there is a space for nursing mothers within the lounge that
is ‘shielded from view' and ‘free from
intrusion, ' this would likely meet the requirements of
. “Locker rooms that function as
changing rooms (i.e., for changing in and out of uniforms)
may also be adequate as long as there is a separate space
designated within the room for expressing milk that is
shielded from view and free from intrusion.”
. “[Employers may provide a large room
with privacy screens so that the room may be used
simultaneously by several nursing employees.”
75 FR 80073-01.
alternately contends that some stations were not appropriate
because the room may have been exposed to dangerous germs.
(Pl's Rep. CMSJ, Doc. 127 at 5.) The DoL's concerns
with sanitation do not afford Plaintiff the right to a
permanent space that she has previously sanitized, or an
unshared private space. 75 FR 80073-01. Plaintiffs concerns
about germs may be a factor in compliance. Again, the factual
ambiguity of what is compliant prevents the Court from
granting summary judgment to either party.
whether a station could have been made compliant simply from
a perfunctory hand-written sign on the door or paper taped
over a window is unclear.
giving both non-moving parties all reasonable inferences, the
compliance of each assigned and potentially-assigned station
is a genuine issue of material fact. Summary judgment on this
issue is not appropriate.
Lost Wages: Minimum Wage
Motion for Summary Judgment argues that Plaintiffs §
207(r) claim fails as a matter of law because she cannot
demonstrate that Defendant's failure to provide an
appropriate space for expression of milk resulted in lost
wages. (DMSJ, Doc. 115 at 5.) Plaintiff contends (1) she was
assigned or had reason to believe she would be assigned to
noncompliant stations, (2) she was forced to use
sick/vacation time to avoid having to express milk at
locations without appropriate nursing rooms, (3) but for
being forced to use the sick/vacation time, she could have
sold her time back to TFD for income. Therefore,
Defendant's noncompliance resulted in an actual financial
loss. (Pl's Resp. MSJ, Doc. 122 at 3-4.) In support,
Plaintiff cites to the Tucson Firefighters Association's
Labor Agreement, which states that earned sick leave may
accrue to an employee's benefit, and may be sold back at
the employee's base rate of pay. (Exh. OOO, Doc. 123-1,
at 119, ¶ 19.)
violation of Section 207(r) alone does not necessarily afford
a private right of action. Indeed, the DoL has stated:
Section 207(r) of the FLSA does not specify any penalties if
an employer is found to have violated the break time for
nursing mothers requirement. In most instances, an employee
may only bring an action for unpaid minimum wages or unpaid
overtime compensation and an additional equal amount in
liquidated damages. 29 U.S.C. 216(b). Because 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.
75 FR 80073-01.
Plaintiff wishes to recover for hours scheduled but not
worked because she did not have a compliant area to express
milk. In the limited case law addressing this specific issue,
other district courts have determined that a plaintiff may
recover lost wages for missed work because there was no
statutorily acceptable area for expressing milk. See
e.g., Lico, 2015 WL 3467159, at *4 (Plaintiff who
traveled home during work hours to express milk which
resulted in loss in wages for failing to comply with 207(r)
stated a viable claim under 207(r)); see Hicks, 2015
WL 6123209, at *28 (an employee who missed work time to
travel to an appropriate place to express milk states a
plausible claim for lost wages); see also Tolene v.
T-Mobile, USA, Inc., 178 F.Supp.3d 674, 680 (N.D. Ill.
explained above, Plaintiff is not required to be compensated
for time used to express milk. In this instance, however,
Defendant concedes it compensates nursing mothers during
break times. (Def s Resp. CMSJ, Doc. 124 at 3.) Therefore,
any break time used to express milk would have been
compensated, and any vacation/sick time used would also have
constituted work time spent, and Plaintiff has stated a
viable claim alleging she is entitled to compensation for
unpaid minimum wages.
other hand, Plaintiff never alleges that anyone told her she
must use sick time for expressing milk, and concedes that on
more than one occasion she prematurely used sick leave before
even being assigned to a station. (Pl's Resp. MSJ, Doc.
122 at 3.) Furthermore, Plaintiffs own filings show that she
was willing and even desired to work at some noncompliant
stations, such as Stations 12 and 20. (Exh. K, Doc. 118-1 at
112.) Yet, Plaintiff has alleged at least eleven instances
where she was actually assigned to stations that were deemed
noncompliant by the EOPD, and used ...