United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
William E. Smith Chief Judge
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) - For the reasons that follow,
Defendants' Motion to Dismiss is GRANTED IN PART and
DENIED IN PART.
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.
facts - as alleged by Plaintiff - are as
follows. 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.)
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.)
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.)
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.)
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.
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;
(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).
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
[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 § 207(r) before the employee can