United States District Court, D. Arizona
HONORABLE JOHN J. TUCHI UNITED STATES DISTRICT JUDGE.
Danielle Behan (“Plaintiff”) brought this matter
alleging that Defendant Lolo's Incorporated
(“Defendant”) failed to allow her the necessary
time and appropriate accommodations to pump breastmilk at
work and subsequently retaliated against her when she
exercised her right to do so. The Court now considers
Defendant's Motion for Summary Judgment (Doc. 46, Mot.),
to which Plaintiff has filed a Response (Doc. 50, Resp.) and
Defendant has filed a Reply (Doc. 52, Reply). For the reasons
that follow, the Court grants Defendant's motion.
operates the restaurant Lo-Lo's Chicken & Waffles,
where Plaintiff worked as a server beginning in July 2013.
(Doc. 47, Def.'s Statement of Facts in Supp. of Mot.
(“DSOF”) ¶¶ 1-2; Doc. 51, Pl.'s
Controverting Statement of Facts in Opp'n to Mot. &
Request to Strike Commentary & Opinions
(“PSOF”) ¶¶ 1-2.) She also worked as a
bartender and server lead. (¶ 25.) On March 7, 2016,
Plaintiff gave birth to her daughter, after which she took
six weeks of maternity leave. (¶¶ 5-6.)
she returned to work in April, Plaintiff took breaks to pump
breastmilk. (¶ 7.) Defendant had a policy that all
employee breaks were unpaid. (¶ 11.) Plaintiff concedes
that she would remain on-the-clock when she pumped-that is,
until September 26, 2016. (Id.) That day, when
Plaintiff left her tables to go pump while she was still
on-the-clock, Tracy Williams learned of this and confronted
Plaintiff to remind her that breaks must be off-the-clock.
(¶¶ 14-15.) Plaintiff maintains that Williams also
said Plaintiff could not pump unless she had no tables and
that there was no suitable place for her to pump. (¶
16.) Indeed, Plaintiff testified that she stopped pumping at
work after that conversation. (¶ 19.) Meanwhile, time
records following September 26 show Plaintiff clocking out
for breaks. (¶ 17.) And Manager Gabby Mbodji testified
that she told Plaintiff there was a space in the office where
she could pump privately. (¶ 18.) Plaintiff stopped
breastfeeding altogether in December 2016. (¶ 22.)
filed a discrimination charge with the Arizona Civil Rights
Division (“ACRD”) on February 7, 2017. (¶
23.) The charge alleged that Defendant had failed to allow
the necessary breaks and location to pump. (Id.) The
federal Equal Employment Opportunity Commission
(“EEOC”), which cooperates with ACRD, retained
jurisdiction and ultimately dismissed the charge on February
28. (¶ 24.) On April 14, 2017, Defendant terminated
Plaintiff's employment for allegedly stealing
confidential customer information in violation of company
policy. (¶¶ 41-43.)
filed suit in Maricopa County Superior Court on May 30, 2017.
(See Doc. 1-2, Verified Compl.) She alleges that
Defendant (1) violated the Fair Labor Standards Act
(“FLSA”) by failing to provide time and a
suitable location for Plaintiff to pump while she was
breastfeeding (Verified Compl. ¶¶ 20-26 (Count
One)); (2) unlawfully retaliated by cutting Plaintiff's
hours when she requested those breaks and terminating her
employment after she filed a discrimination charge
(¶¶ 27-32 (Count Two), 38-42 (Count Four)); (3)
engaged in sex-based discrimination by failing to accommodate
her need to pump at work (¶¶ 33-37 (Count Three),
43-46 (Count Five)); (4) wrongfully terminated
Plaintiff's employment by ending her employment for an
unlawful reason (¶¶ 47-50 (Count Six)); and (5)
discriminated against Plaintiff in a manner constituting
intentional infliction of emotional distress
(“IIED”) (¶¶ 51-53 (Count Seven)).
Defendant removed to this Court on June 30, 2017.
(See Doc. 1, Notice of Removal.)
judgment is appropriate when: (1) the movant shows that there
is no genuine dispute as to any material fact; and (2) after
viewing the evidence most favorably to the non-moving party,
the movant is entitled to prevail as a matter of law.
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N.
Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987). “Only
disputes over facts that might affect the outcome of the suit
under governing [substantive] law will properly preclude the
entry of summary judgment.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine
issue” of material fact arises only “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
considering a motion for summary judgment, the court must
regard as true the non-moving party's evidence, if it is
supported by affidavits or other evidentiary material.
Celotex, 477 U.S. at 324; Eisenberg, 815
F.2d at 1289. However, the non-moving party may not merely
rest on its pleadings; it must produce some significant
probative evidence tending to contradict the moving
party's allegations, thereby creating a material question
of fact. Anderson, 477 U.S. at 256-57 (holding that
plaintiff must present affirmative evidence to defeat
properly supported motion for summary judgment); First
Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S.
253, 289 (1968).
summary judgment motion cannot be defeated by relying solely
on conclusory allegations unsupported by factual data.”
Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
“Summary judgment must be entered ‘against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.'” United States v. Carter, 906 F.2d
1375, 1376 (9th Cir. 1990) (quoting Celotex, 477
U.S. at 322).
seeks summary judgment on all seven claims. Specifically,
Defendant contends that (1) Plaintiff's FLSA claim fails
for lack of lost wages; (2) her retaliation claims are beset
by a lack of damages, causation, and pretext; (3) her
discrimination claims are undermined by Plaintiff's poor
job performance, lack of an adverse employment action, and
failure to show that similarly situated employees were
treated more favorably; (4) Plaintiff lacks both the
requisite belief that Defendant was violating Arizona law and
proof of causation necessary to prove wrongful termination;
and (5) Defendant's alleged actions fall short of the
outrageous conduct necessary to prove IIED. (See
generally Mot.) The Court resolves each argument
Reasonable Break Time for Nursing Mothers (Count
FLSA requires employers to provide both “a reasonable
break time” for employees to express breastmilk and a
private place “other than a bathroom” in which to
do so. 29 U.S.C. § 207(r)(1)(A)-(B). Employers need not
compensate employees for such breaks. § 207(r)(2). And
they are liable only for unpaid minimum wages or overtime
compensation caused by their failure to provide the required
time and space. § 216(b); accord Clark v. City of
Tucson, No. CV 14-02543-TUC-CKJ, 2018 WL 1942771, at *3
(D. Ariz. Apr. 25, 2018) (“A plaintiff's damages
are limited to lost wages attributable to the § 207(r)
violation.”) (quotation omitted). As a result, the
statute does not always provide a remedy for failure to
provide breaks. Clark, 2018 WL 1942771, at *5
(citing 75 Fed. Reg. 80073-01). Such is the case here.
purposes of this motion, Defendant maintains that, even
assuming it violated the statute, such violations did not
cause Plaintiff to lose wages. (Mot. at 5.) At her
deposition, Plaintiff agreed that Defendant's failure to
provide breaks did not cause her to lose any money. (Doc.
47-1, Ex. A-Video Dep. of Danielle D. Behan (“Behan
Dep.”) at 140:11-141:3.) Calling Defendant's
argument “smoke and mirrors, ” Plaintiff insists
not only that has she presented evidence of lost wages, but
also that the statute allows for punitive damages. (Resp. at
6.) Not so. Plaintiff cites no evidence rebutting her earlier
admission. (See id.) She likewise offers no
authority demonstrating that punitive damages are available
here. Indeed, the case she cites suggests a more limited view
of the FLSA's remedial scheme. See Francisco v.
Susano, 525 Fed.Appx. 828, 835 (10th Cir. 2013) (noting
that unlike other statutes' broad remedial arsenals,
“the FLSA simply remedies the failure to pay wages at
the statutory minimum [w]age”).
the Supreme Court nor Ninth Circuit has addressed the
availability of punitive damages under the FLSA. The two
circuits that have considered the question are split.
Compare Snapp v. Unlimited Concepts, Inc., 208 F.3d
928 (11th Cir. 2000) (disallowing punitive damages),
with Travis v. Gary Cmty. Mental Health Ctr., Inc.,
921 F.2d 108 (7th Cir. 1990) (allowing punitive
damages). District courts in this circuit are
similarly fractured on the issue. Compare, e.g.,
Campbell-Thomson v. Cox Commc'ns, No.
CV-08-1656-PHX-GMS, 2010 WL 1814844, at *10-11 (D. Ariz. May
5, 2010) (following Travis), with, e.g.,
Tumulty v. ...