Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mayer v. Professional Ambulance, LLC

United States District Court, D. Rhode Island

September 30, 2016

ALLISON MAYER, 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.

          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.

         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 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.) Plaintiff stated that an unsanitary bathroom was unsuitable. (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." (Id. ¶¶ 36-37.) 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 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. (Id. ¶ 42.) 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.) 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." (Id. ¶¶ 61-62.) Plaintiff did not "express milk again that night because no 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.) She called Martin who said she could work that Tuesday. (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. (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 allegedly replaced by a male with fewer qualifications. (Id. ¶ 83.) 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. (Id. ¶ 96.) As a result, she had to switch her child to formula, which caused medical problems. (Id.) She also claims emotional distress. (Id.)

         II. 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." 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. See, e.g., Hicks, 2015 WL 6123209, at *28. 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 minimum wages as a proximate result of the violation." (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 ยง 207(r) before the employee can ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.