Clark v. City of Tucson

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

No. CV 14-02543-TUC-CKJ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

April 24, 2018

ORDER

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 theadverse 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 OracleCorp. 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 ofthe 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 U.S.C. § 207(r)

Plaintiff's 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 plaintiff's 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 Plaintiff's 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, onMarch 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 ...