Behan v. Lolo's Inc.

          ORDER

          HONORABLE JOHN J. TUCHI UNITED STATES DISTRICT JUDGE.

         Plaintiff 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).^[1] For the reasons that follow, the Court grants Defendant's motion.

         I. BACKGROUND

         Defendant 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.)

         When 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.)

         Plaintiff 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.)

         Plaintiff 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.)

         II. LEGAL STANDARD

         Summary 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.

         In 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).

         “A 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).

         III. ANALYSIS

         Defendant 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 separately.

         A. Reasonable Break Time for Nursing Mothers (Count One)

         The 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.

         For the 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”).

         Neither 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), ^[2]with Travis v. Gary Cmty. Mental Health Ctr., Inc., 921 F.2d 108 (7th Cir. 1990) (allowing punitive damages).^[3] 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. ...