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Clark v. City of Tucson

United States District Court, D. Arizona

April 24, 2018

Carrie Ferrara Clark, Plaintiff,
v.
City of Tucson, Defendant.

          ORDER

          HONORABLE CINDY K. JORGENSON UNITED STATES DISTRICT JUDGE.

         Pending 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 Plaintiff's Cross-Motion.

         Case Summary

         Plaintiff's 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.

         Timeliness of Defendant's Response to Cross-Motion for Summary Judgment

         As a 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 at 1.)

         Defendant 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”).

         Furthermore, 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.[1]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.

         Standard of Review

         A court 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).

         The 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. 2010).

         If the 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, 587 (1986).

         At 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).

         The 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. Id.

         Count One: Sex Discrimination Under Fair Labor Standards Act, 29 USC. § 207(r)

         Plaintiffs 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).

         . Suitable Space

         Plaintiff 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.)

         First, 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”)[2] 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.)

         As 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.)

         Plaintiff 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 private. (Id.)

         Defendant's 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.

         Defendant 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.)

         Plaintiff 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.)

         The 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.)

         The 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 document states:

. “The employer is not obligated to maintain a permanent, dedicated space for nursing mothers.”
. “[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 the law.”
. “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.

         Plaintiff 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.

         Finally, 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.

         Therefore, 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

         Defendant's 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.)

         A 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.

         Here 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. 2016) (same).

         As 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.

         On the 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 ...


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