Case: 22-60034 Document: 00516488346 Page: 1 Date Filed: 09/28/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
September 28, 2022
No. 22-60034 Lyle W. Cayce
Clerk
Bailie Bye,
Plaintiff—Appellant,
versus
MGM Resorts International, Incorporated,
doing business as Beau Rivage Resort and Casino,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:20-CV-3
Before Jones, Ho, and Wilson, Circuit Judges.
Edith H. Jones, Circuit Judge:
Plaintiff is a working mother who brought suit against her employer
for pregnancy discrimination under Title VII, constructive discharge, and
creating a hostile work environment. The district court granted summary
judgment to her employer because she failed to create triable fact issues. We
concur. We also find no error or abuse of discretion in the district court’s
dismissal of her belatedly-raised Fair Labor Standards Act (“FLSA”) claim.
Johnson v. City of Shelby, Miss., 574 U.S. 10, 11,
135 S. Ct. 346, 346 (2014)
(per curiam) is inapposite. The judgment is AFFIRMED.
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BACKGROUND
Defendant Beau Rivage Resorts, LLC operates a casino and resort
facility in Biloxi, Mississippi. Plaintiff Bailie Bye was employed at Beau
Rivage as a server at Defendant’s Terrace Café from January 7, 2015, until
she gave two weeks’ notice on June 28, 2019. She brought suit against Beau
Rivage alleging that, while she was employed, she was subject to pregnancy
and sex discrimination, harassment, and constructive discharge in violation
of Title VII of the Civil Rights Act. Specifically, she challenges the adequacy
of her lactation breaks and she alleges harassment from co-workers due to her
lactation breaks.
As a matter of course, servers at the Terrace Café were provided a
mandatory 30-minute break and two additional optional 15-minute breaks
during their shifts. They would generally follow a breaker schedule to track
their breaks. For each shift, one of the servers would serve as a “breaker,”
who was responsible for relieving each server for his or her break. The
breaker would relieve those who started earliest in the shift and rotate to
those who arrived later. The earliest arrivals would come in at 6am, the next
round at 8am, and the last round at 1pm. Servers were sometimes delayed,
however, from taking their breaks for any number of reasons including
staffing, shift changes, the number of patrons in the restaurant, or customers
lingering at the table. It was in the servers’ best interest to delay a break until
a table’s entrée was served in order to retain the tip from that table instead of
having the table (and the accompanying tip) transferred to the breaker. This
was especially true given the added complication of having to involve a
manager to close out a check for a server who was on break.
Ms. Bye returned to work from maternity leave on March 10, 2019.
She worked the 8am-4pm shift. Upon her return, she requested two 30 to
40-minute lactation breaks. At first, she did not request that her breaks occur
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at any particular time. Her request was approved, and she received access to
a locked lactation room. She typically received her first break according to
the breaker schedule and her second break after the breaker relieved the other
servers. For just over two months, Ms. Bye took either two 30-minute breaks
or one hour-long break each full day she worked.
On May 11, 2019, Ms. Bye sought a modified accommodation, seeking
two 45-minute breaks at specific times—the first at 10am and the second at
1pm. She included a medical certification from her physician, which stated
that “she must be able to pump breast milk twice during her shift in 45 min
increments, once at 10:00am and at 1:00 pm.” Management was initially
concerned that scheduling breaks at specific times would be difficult due to
the unpredictable nature of the business and the need for flexibility in order
to maintain continuity in service. Thus, in response to her request, Beau
Rivage offered Ms. Bye three options: (1) she could work the earlier 6am
shift, allowing her to take an earlier break at 8am; (2) she could work as the
breaker for as long as she needed to in order to take her breaks as needed; or
(3) she could break once in the morning and once in the afternoon for 45
minutes as close as possible to the times she requested, but not necessarily at
those exact times. Ms. Bye rejected all three proposals.
Nevertheless, management granted Ms. Bye’s request for an
accommodation on June 14, 2019, indicating that she could take her first
break sometime between 10am and 10:30am and her second break sometime
between 1pm and 1:30pm. According to Beau Rivage, in compliance with this
new schedule, Ms. Bye’s manager would speak with the breaker at the
beginning of every shift to ensure that Ms. Bye received her breaks at the
necessary time. When the breaker was unable to accommodate Ms. Bye’s
schedule, one of the managers would step in and cover her tables or close her
section so she could go on her break. Ms. Bye contends, on the other hand,
that her breaks were “sporadic, sometimes not occurring at all” and
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sometimes occurring “30 minutes to over an hour past time.” She suggests
that there were multiple times when the breaker did not respect her specific
break time and that there was effectively “no accommodation made for
Ms. Bye to take breaks.”
Ms. Bye further alleges that her co-workers began to harass her as a
result of this new break schedule. She describes various instances where co-workers got frustrated with her for wanting to leave early or for taking her
breaks. She asserts that her co-workers did not want to work with her and
that they made negative comments to her about her lactation breaks. She also
contends that her general manager was attempting to terminate her, but her
belief is based entirely on the fact that one of the restaurant hostesses,
Jennifer Cress, told Ms. Bye that Jennifer knew about a group message among
restaurant workers where an unidentified person stated that the general
manager “was working on getting rid of [Plaintiff].” Ms. Bye never saw this
message herself, and Jennifer told her that she did not “know how true it is”
or “who it came from” because she was not a participant in the group
message.
Due to this alleged mistreatment, Ms. Bye contends that she
complained to human resources about not receiving breaks as scheduled and
the purported harassment by her co-workers, but that nothing ultimately
came of her reports. She testified in her deposition that, “[r]ight when [she]
was finally starting to actually get pump breaks at the times that [she] needed
them, the harassment had gotten overwhelming.” She gave two weeks’
notice on June 28, 2019.
On May 29, 2019, Ms. Bye filed a charge of discrimination with the
Equal Employment Opportunity Commission (“EEOC”), alleging
harassment, sex discrimination, and retaliation due to being “denied the
ability to take needed breaks and use a breast pump.” She filed a second
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charge with the EEOC on August 2, 2019, alleging retaliation and that she
“was forced to quit [her] job at the Beau Rivage due to them refusing to allow
[her] to take breaks to pump breast milk, along with harassment from [her]
coworkers.” The EEOC issued right to sue letters for both charges on
September 17, 2019.
On November 13, 2019, Ms. Bye filed suit against Beau Rivage in the
Circuit Court of Harrison County, Mississippi, alleging pregnancy and sex
discrimination, harassment, and constructive discharge in violation of
Title VII. Defendants removed the case to federal court.
The district court granted summary judgment to Beau Rivage, holding
that Ms. Bye did not present sufficient evidence to support a prima facie case
of either disparate treatment, harassment, or constructive discharge.
Regarding her allegations of inadequate lactation breaks, the court further
noted that, even if Ms. Bye could support a prima facie case of disparate
treatment, her claim would still fail because Beau Rivage has articulated
legitimate, nondiscriminatory reasons for not giving her breaks at the exact
times requested.
Ms. Bye also invoked the FLSA for the first time in response to the
motion for summary judgment, and the district court rejected the claim as
untimely and not properly before the court. Ms. Bye appealed.
STANDARD OF REVIEW
This court reviews a district court’s grant of summary judgment de
novo, “applying the same standard as the district court.” Brandon v. Sage
Corp., 808 F.3d 266, 269 (5th Cir. 2015) (citing Roberts v. City of Shreveport,
397 F.3d 287, 291 (5th Cir. 2005)). A party is entitled to 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; see also Celotex Corp. v. Catrett,
477 U.S. 317, 322,
106 S. Ct. 2548, 2552
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(1986). But “[o]nce the moving party has initially shown that there is an
absence of evidence to support the non-moving party’s cause, the nonmovant must come forward with specific facts showing a genuine factual
issue for trial.” U.S. ex rel. Farmer v. City of Houston, 523 F.3d 333, 337
(5th Cir. 2008) (internal quotation marks omitted).
DISCUSSION
Ms. Bye raises three primary arguments 1 on appeal. First, she
challenges the district court’s conclusion that she failed to make out a prima
facie case of harassment or hostile work environment. Second, she suggests
that her constructive discharge claim should have made it to a jury. Third,
she contends that the district court erred by dismissing her FLSA claim.
I. Harassment/Hostile Work Environment
The district court held that Ms. Bye failed to establish a prima facie
case of harassment or hostile work environment. “Title VII does not prohibit
all harassment.” Gardner v. CLC of Pascagoula, L.L.C., 915 F.3d 320, 325
(5th Cir. 2019), as revised (Feb. 7, 2019). The “standards for judging hostility
are sufficiently demanding to ensure that Title VII does not become a
‘general civility code.’” Faragher v. City of Boca Raton,
524 U.S. 775, 788,
118 S. Ct. 2275, 2283–84 (1998) (quoting Oncale v. Sundowner Offshore Servs.,
Inc.,
523 U.S. 75, 80,
118 S. Ct. 998, 1002 (1998)). These standards are
intended to “filter out complaints attacking the ordinary tribulations of the
workplace, such as the sporadic use of abusive language, gender-related
jokes, and occasional teasing.” Id. at 788, 118 S. Ct. at 2284 (internal
quotation marks omitted). “[A]llegations of unpleasant work meetings,
verbal reprimands, improper work requests, and unfair treatment do not
1
Ms. Bye does not challenge on appeal the district court’s rejection of her
disparate-treatment claims.
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constitute actionable adverse employment actions as discrimination or
retaliation.” Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818, 826 (5th Cir.
2019) (internal quotation marks omitted). Rather, there must be
“discriminatory intimidation, ridicule and insult that is sufficiently severe or
pervasive to alter the conditions of the plaintiff’s employment and create an
abusive working environment.” Badgerow v. REJ Properties, Inc.,
974 F.3d
610, 617 (5th Cir. 2020) (internal quotation marks and alterations omitted).
In order to establish a hostile work environment claim, Ms. Bye had to
demonstrate that
(1) the employee belonged to a protected class; (2) the
employee was subject to unwelcome sexual harassment; (3) the
harassment was based on sex; (4) the harassment affected a
“term, condition, or privilege” of employment; and (5) the
employer knew or should have known of the harassment and
failed to take prompt remedial action.
Woods v. Delta Beverage Grp., Inc., 274 F.3d 295, 298 (5th Cir. 2001). The
district court determined that, “at a minimum the third and fourth elements
are problematic” for Ms. Bye. It concluded that she failed to produce “any
competent summary judgment evidence, other than her own conclusory
assertions or subjective beliefs,” that indicated that the alleged harassment
was related to her lactation breaks. While she provided comments that her
co-workers made about her taking breaks to pump, she has submitted no
evidence showing the frequency of the comments or who specifically made
them. Additionally, according to the district court, the conduct described by
Ms. Bye was not “sufficiently severe or pervasive,” as she again failed to
demonstrate that the alleged hostility was more than “mere offensive
utterances,” which are not sufficient to establish a claim under Title VII.
We find nothing problematic about the district court’s assessment of
the evidence. Ms. Bye contends that the district court inappropriately
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dismissed evidence that “employees chose to and purposefully failed to break
Ms. Bye on time, harassed Ms. Bye by clapping when she had to leave to go
to the hospital for her child, [and] refus[ed] to work with Ms. Bye.” But as
the district court observed, Ms. Bye provided no evidence regarding who said
what or how often, or how this treatment was related to her needing to take
lactation breaks. All the court had was Ms. Bye’s own account, unsupported
by competent evidence. And her subjective beliefs as to the motivation of
others are insufficient.
Additionally, the level of mistreatment she claims occurred would not
constitute harassment or a hostile work environment under Title VII. For
conduct to be sufficiently severe or pervasive, it must be both objectively and
subjectively offensive. Badgerow, 974 F.3d at 617–18. To determine whether
the work environment is objectively offensive, the court considers the totality
of the circumstances, including “(1) the frequency of the discriminatory
conduct; (2) its severity; (3) whether it is physically threatening or
humiliating, or merely an offensive utterance; and (4) whether it interferes
with an employee’s work performance.” Id. at 618 (internal quotation marks
omitted). “No single factor is determinative.” Id. (internal quotation marks
omitted).
Ms. Bye’s allegations do not support a finding that the conduct was
objectively severe. At worst, her co-workers were unkind to her, and she had
difficulty working with some of them. But not all troubled work relationships
can be remedied by federal law. Title VII is not a tool to exact revenge on
those with whom one does not get along. The picture she paints is not of a
hostile or abusive working environment as evaluated by the totality of the
circumstances. Ms. Bye’s harassment claim fails as a matter of law.
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II. Constructive Discharge
For similar reasons, the court correctly granted summary judgment on
Ms. Bye’s constructive discharge claim. She contends that Beau Rivage
constructively discharged her by not allowing her to take lactation breaks as
needed. “To prove a constructive discharge, a ‘plaintiff must establish that
working conditions were so intolerable that a reasonable employee would feel
compelled to resign.’” Brown v. Kinney Shoe Corp., 237 F.3d 556, 566
(5th Cir. 2001) (quoting Faruki v. Parsons,
123 F.3d 315, 319 (5th Cir. 1997)).
This court has considered the following events relevant in determining
whether a reasonable employee would feel compelled to resign:
(1) demotion; (2) reduction in salary; (3) reduction in job
responsibilities; (4) reassignment to menial or degrading work;
(5) badgering, harassment, or humiliation by the employer
calculated to encourage the employee’s resignation; or
(6) offers of early retirement that would make the employee
worse off whether the offer were accepted or not.
Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 991 (5th Cir. 2008)
(quoting Aryain v. Wal–Mart Stores Tex. LP,
534 F.3d 473, 481 (5th Cir.
2008)).
Ms. Bye seeks to rely upon the “badgering, harassment, or
humiliation” by other employees, but, again, she has provided insufficient
evidence that conditions were so intolerable that she was compelled to resign.
“Constructive discharge requires a greater degree of harassment than that
required by a hostile environment claim.” Brown, 237 F.3d at 566.
“Discrimination alone, without aggravating factors, is insufficient for a claim
of constructive discharge . . . .”
Id. On appeal, she faults the district court
for allegedly failing to consider the physical pain she endured because she did
not receive her lactation breaks on time. And while there is no evidence to
question that Ms. Bye experienced discomfort, she concedes she received her
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lactation breaks most of the time, even if they were 30 minutes to an hour
past the scheduled time. A reasonable employee in Ms. Bye’s shoes would
not have considered these late lactation breaks so intolerable as to compel
resignation, especially given management’s ongoing efforts to accommodate
her requests. Ms. Bye’s subjective disparagement of management’s efforts,
given much evidence of the difficulty of arranging breaks exactly while also
accommodating servers’ needs to close out tables, is not sufficient to
maintain her constructive discharge claim.
III. FLSA
Finally, Ms. Bye challenges the district court’s dismissal of her
untimely raised FLSA claim. Ms. Bye never alluded to an FLSA claim until
she responded to the defendant’s motion for summary judgment. The
district court determined that this belated reference demonstrated the claim
was not properly presented. See Douglas v. Wells Fargo Bank, N.A., 992 F.3d
367, 373 (5th Cir. 2021). It is true that “[a] claim which is not raised in the
complaint but, rather, is raised only in response to a motion for summary
judgment is not properly before the court.” Jackson v. Gautreaux,
3 F.4th
182, 188 (5th Cir. 2021) (quoting Cutrera v. Bd. of Supervisors of La. State
Univ.,
429 F.3d 108, 113 (5th Cir. 2005)). Indeed, this court has “repeatedly
emphasized this rule.”
Id. at 188–89 (collecting cases).
Ms. Bye, however, relies on the Supreme Court’s statement in
Johnson v. City of Shelby, Miss., that “[f]ederal pleading rules . . . do not
countenance dismissal of a complaint for imperfect statement of the legal
theory supporting the claim asserted.” 574 U.S. 10, 11,
135 S. Ct. 346, 346
(2014) (per curiam). In Johnson, the plaintiffs’ failure to cite
42 U.S.C.
§ 1983 in their complaint was a hypertechnical error, given that the only
plausible basis for federal court jurisdiction there was that the plaintiffs were
terminated in violation of their First Amendment rights by their public
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employer, which could only proceed according to § 1983. 2 Id. at 11, 135 S. Ct.
346–47. The Supreme Court cited Twombly 3 and Iqbal 4 in concluding that
plaintiffs’ allegations plainly “informed [the Defendant] of the factual basis
for the[] complaint,” as a result of which the plaintiffs were “required to do
no more to stave off threshold dismissal for want of an adequate statement of
their claim.” Id. at 12, 135 S. Ct. at 347.
Johnson is inapposite here for various reasons. First, the only claim
considered by the Supreme Court was plaintiffs’ sole claim under Section
1983, whereas here, the plaintiff’s pleadings exclusively and repeatedly focus
on Title VII claims alone. In Johnson, the Court noted that the plaintiffs’
recitation of facts left no room for doubt as to the legal basis for their claim,
see id., whereas here, the plaintiff, represented by highly competent counsel,
was the mistress of her complaint, and the several claims she pled all arose
from Title VII. Neither the defendant nor the district court were required to
read into the carefully stated complaint (together with exhibits
demonstrating exhaustion of Title VII remedies) a wholly different claim that
was not pled. This is one reason why this court has “repeatedly emphasized”
that new claims need not be considered when first raised in responses to
summary judgment motions.
2
In support of this holding, the Court cited an employment discrimination case for
the proposition that “imposing a ‘heightened pleading standard in employment
discrimination cases conflicts with Federal Rule of Civil Procedure 8(a)(2),’” thus
suggesting that this conclusion is not limited to the § 1983 context. Johnson, 574 U.S. at 11,
135 S. Ct. at 347 (quoting Swierkiewicz v. Sorema N. A.,
534 U.S. 506, 512,
122 S. Ct. 992,
998 (2002)); see also, e.g., Melvin v. Barr Roofing Co.,
806 F. App’x 301, 308 (5th Cir. 2020)
(unpublished) (Johnson applied to hostile work environment claim); Thomas v. S. Farm
Bureau Life Ins. Co.,
751 F. App’x 538, 540 n.9 (5th Cir. 2018) (unpublished) (Johnson
applied to wrongful discharge claim). Unpublished cases from this court are, however,
non-precedential.
3
Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
127 S. Ct. 1955 (2007).
4
Ashcroft v. Iqbal, 556 U.S. 662,
129 S. Ct. 1937 (2009).
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Second, nothing in Johnson purports to supersede the ordinary rules
of case management prescribed by the Federal Rules of Civil Procedure. To
be clear, in Johnson, the lower courts had granted and affirmed summary
judgment based on plaintiffs’ pleading omission, but the Court’s opinion is
premised on the obviousness of Section 1983 as the vehicle under which the
claim had proceeded. Here, the progress of the case was quite different. The
district court explained that Ms. Bye’s attempt to raise an FLSA claim
occurred months after the deadline for pleading amendments, well after the
discovery cutoff date, and within a month or two of the trial setting. The
court emphasized, correctly, how the case had developed for nearly two years
in light of scheduling conferences and orders intended precisely to shape the
case for impending trial or other final resolution.
Third, an FLSA claim for denial of lactation breaks invokes different
facts and remedies than Title VII, e.g., claims for failure to pay overtime and
potential double damages. See 29 U.S.C. § 207(r)(1)(A), Sec. 216. Although
Section 207(r) specifies that an employer has no duty to compensate an
employee for lactation breaks, the Department of Labor has ruled that if the
employee uses regular break time for lactation, she must be paid in tandem
with other employees. 5 Nothing in plaintiff’s pleading asserted any damage
claim consistent with the FLSA pregnancy provision. The district court
noted this deficiency, stating that no facts had been adduced that as to unpaid
minimum wage or overtime, nor did Ms. Bye claim other FLSA-related
damages, e.g., the employer’s abuse of exceptions like sick leave. In fact,
because this provision has generally been enforced by the Labor Department
rather than individual plaintiffs, the plaintiff’s belated attempt to inject an
FLSA claim here left the court and the defendants largely in the dark about
5
FAQs pertinent to Section 207(r), at dol.gov/agencies/whd/nursingmothers/faq, visited 9/27/2022.
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its potential reach and consequences. Contrary to the dissent, this was a
“new” claim.
Fourth, in connection with case management, we note the district
court considered sua sponte whether Ms. Bye should be permitted to amend
and add the FLSA claim, but it rejected that option. The Supreme Court’s
Johnson opinion does not discuss the implications to be drawn from Fed. R.
Civ. Pro. 16, but it seems unlikely that in the course of holding only that facts,
rather than legal theories, matter at the pleading stage, the Court intended
to upset the case management framework articulated in Rule 16, titled
“Pretrial Conferences; Scheduling, Management.” Briefly summarizing its
detailed provisions (which are further usually elaborated on by local district
court rules), the purposes of pretrial conferences include expediting
disposition of the action; establishing early and continuing judicial control to
avoid protracting the case; improving the quality of trial through more
thorough preparation; and facilitating settlement. Rule 16(a). Further, a
court must ordinarily issue a scheduling order that, inter alia, limits the time
to amend the pleadings, complete discovery, and file dispositive motions.
Rule 16(b)(2), (3)(A). Finally, among many case management aims stated for
pretrial conferences, the court “may” “formulat[e] and simplify[] the issues,
and eliminat[e] frivolous claims and defenses.” Rule 16(c)(2)(A). Each of
these steps had occurred in this case, more than once. Yet at no time during
the two-year pendency of the case had Ms. Bye alluded to an FLSA claim,
and the parties were on the verge of trial when the district court ruled on
defendant’s motion for summary judgment. The court cited the length of
her delay, the prejudice to the defendant, and the burden on the court from a
continuance that would be required to address her new claim. The belated
FLSA claim was an abuse of the opposing party and the court, and it was no
abuse of discretion for the district court to deny an amendment. Moreover,
Ms. Bye failed to address this aspect of the court’s decision and has forfeited
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any challenge to it. In re Southmark Corp., 163 F.3d 925, 934 n.12 (5th Cir.
1999). In essence, she concedes the impropriety of her dilatory maneuver.
Fifth, our colleague cites two cases that allegedly adopted a “broad”
version of Johnson, but each is plainly distinguishable. The Second Circuit
in Quinones reversed a Rule 12(b)(6) dismissal on the pleadings where the
district court incorrectly found no Sec 1981 discrimination claim had been
pled---despite that the plaintiff’s first paragraph stated, “[t]he claim for
discriminatory conduct based on Hispanic origin is brought pursuant to
42 U.S.C. Sec. 1981.” Quinones v. City of Binghamton,
997 F.3d 461, 468-69
(2d Cir. 2021). Plaintiff’s complaint also alleged he sustained damages
because he was discriminated against on the basis of Hispanic origin.”
Id.
Unlike this case, Quinones had not proceeded through the court-supervised
pretrial management process to the end of discovery and verge of trial before
the “new” claim had been articulated. And in Koger v. Dart,
950 F.3d 971,
974-75 (7th Cir. 2020), the Seventh Circuit noted that the magistrate judge
herself had understood a prisoner plaintiff’s suit to include a due process
damage claim for the prison’s loss of his books, even though the court later
held the claim was insufficiently pled. There was no surprise to the
defendants or the court about that claim which had been maintained from the
outset. And again, there is no discussion of the impact of pretrial case
management upended by the plaintiff’s tactic of belated articulation. We do
not disagree with Johnson, nor with the sister circuits’ decisions, but each
case must be understood in its specific procedural setting. The procedural
setting of the instant case likewise necessarily bears on the latitude with
which the “facts only” pleading rules apply as a case moves further, via case
management principles, toward trial or definitive motion practice.
CONCLUSION
For the foregoing reasons, the judgment is AFFIRMED.
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James C. Ho, Circuit Judge, concurring in part and dissenting in part:
The Fair Labor Standards Act is often understood as helping workers
by providing extra pay for extra hours worked. But “that is not the only
way—and perhaps not even the best way—to understand the FLSA.” Hewitt
v. Helix Energy Sols. Grp., 15 F.4th 289, 303 (5th Cir. 2021) (en banc) (Ho, J.,
concurring), cert. granted, _ U.S. _,
142 S. Ct. 2674 (2022). What drives
many Americans is not higher pay, but a better life. What gets countless
citizens out of bed each morning is not work, but family. Many workers
prefer “more free time over more money,” because that means more
opportunity to “rest, recreate, and spend time with loved ones.”
Id. In sum,
the FLSA helps many workers lead more joyous and abundant lives by
offering not greater compensation, but better working conditions.
Consistent with these principles, Congress amended the FLSA in
2010 to require employers to provide nursing mothers reasonable unpaid
break time to express breast milk after the birth of a child. Pub. L. No. 111-
148, § 4207, 124 Stat. 119, 577-78 (2010). As amended, the Act requires
employers to “provide . . . 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 “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)(A)-(B).
The complaint in this case appears to plead all of the facts necessary
to support a claim that the Beau Rivage Resort and Casino in Biloxi,
Mississippi, violated Bailie Bye’s rights to a reasonable break time for nursing
as required by the 2010 amendments to the FLSA. Specifically, Bye’s
complaint alleges that the lactation breaks that the Beau Rivage afforded her
“were sporadic.” “The room was filthy, and [she] had to complain to make
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sure that the room was cleaned up so that the room was sanitary to pump.”
“Every time she needed a break [she] was questioned or told that she had to
wait.” Her “breast became engorged” because she “was not given regular
breaks,” leading to “unbearable pain at work.” She was “told that she could
not take a break until employees who had not taken their breaks yet had taken
their breaks.” As a result, she was only given her break “hours past its
required time.” “Because of [her] pumps breaks,” “co-workers began to
harass” her. She was eventually “forced to leave her employment because
she could no longer endure the harassment and physical pain from not being
allowed to take her pump breaks.”
These allegations would seem to be well sufficient to state a claim
under the FLSA, but for one problem: The complaint does not mention the
FLSA. It mentions only Title VII of the Civil Rights Act of 1964.
The panel majority concludes that this omission is fatal to the FLSA
claim, and accordingly dismisses it without addressing its merits.
I respect the majority’s reasoning. But I’m not sure it’s consistent
with governing Supreme Court precedent.
I.
Reasonable minds can disagree over how much detail a plaintiff should
be required to include in a complaint—and how best to strike the balance
between ensuring fair notice to defendants and avoiding unnecessary burden
on plaintiffs. In this case, Bye’s complaint mentions no statutory basis for
relief other than Title VII. So Beau Rivage might reasonably infer that Bye
deliberately chose not to pursue relief under any provision of law other than
Title VII. Expressio unius usually means exclusio alterius. See ante, at 11–12.
But the Supreme Court has made clear that plaintiffs need only plead
facts—not legal theories.
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In Johnson v. City of Shelby, Mississippi, 574 U.S. 10 (2014) (per
curiam), the Supreme Court summarily reversed our court for mistakenly
requiring plaintiffs to plead legal theories as well as facts. The Court
explained that “[a] plaintiff . . . must plead facts sufficient to show that her
claim has substantive plausibility.”
Id. at 12 (emphasis added). It concluded
that the complaint in that case alleged sufficient facts: “Petitioners stated
simply, concisely, and directly events that, they alleged, entitled them to
damages from the city.”
Id.
And here’s the kicker: “Having informed the city of the factual basis
for their complaint, they were required to do no more to stave off threshold
dismissal for want of an adequate statement of their claim.” Id. (emphasis
added).
So Johnson makes clear that “it is unnecessary to set out a legal theory
for the plaintiff’s claim for relief.” Id. (quotations omitted, emphasis added).
Other circuits have interpreted Johnson similarly. The Seventh
Circuit summed it up this way: Under Johnson, “[c]omplaints plead
grievances, not legal theories.” Koger v. Dart, 950 F.3d 971, 974 (7th Cir.
2020). So it didn’t matter that a complaint “initially relied only on the First
Amendment”—the plaintiff could still invoke the Due Process Clause “at
later stages of the suit.” Id. at 975. What’s more, the plaintiff “did not [even]
need to amend the complaint to do so.” Id. The Second Circuit has taken
the same approach. See Quinones v. City of Binghamton,
997 F.3d 461, 468
(2nd Cir. 2021) (“[T]he complaint identifies a single cause of action for
retaliation and does not similarly label a cause of action for discrimination.
But this failure is not fatal here.”) (following Johnson).
To be sure, I can understand the temptation to reconceptualize
Johnson. After all, the plaintiffs there plainly alleged a constitutional
violation by the city—their complaint just neglected to mention 42 U.S.C. §
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1983. It would surely be “obvious” to any defendant—and certainly to any
municipal lawyer worth their salt—that a complaint that alleges a
constitutional violation by a city surely means to seek relief under § 1983. See
ante, at 12 (noting “the obviousness of Section 1983 as the vehicle under which
the claim had proceeded” in Johnson) (emphasis added).
So it would have been easy for the Court to decide Johnson based on
the inherent obviousness of § 1983 claims, and nothing more.
But it didn’t. Johnson is premised not on § 1983, but on general
pleading principles.
II.
Before I conclude, I offer a few brief rebuttals to various additional
points made by the panel majority.
1. The majority tries to distinguish this case from Johnson on the
ground that “each case must be understood in its specific procedural
setting.” Ante, at 14.
As the majority explains, Bye did not refer to the FLSA until “well
after . . . discovery,” when she “first raised [it] in responses to summary
judgment motions.” Id. at 12. Based on that procedural posture, the majority
concludes that allowing Bye’s claim to proceed at this stage would
“supersede the ordinary rules of case management” and “upset the case
management framework articulated in Rule 16.” Id. at 12, 13.
But Johnson involved precisely the same procedural posture. Like
Bye, the plaintiffs in Johnson did not mention their statutory basis for relief
until “after” discovery, in response to a motion for summary judgment. See
Johnson v. City of Shelby, 743 F.3d 59, 61 (5th Cir. 2013), rev’d,
574 U.S. 10
(“Following discovery, the City . . . filed a motion for summary judgment,”
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where it “argued that it was entitled to judgment in its favor because [the
plaintiffs] did not invoke 42 U.S.C. § 1983 in their complaint.”).
2. The majority offers another observation about the procedural
posture of this case: The court below “considered sua sponte whether Ms.
Bye should be permitted to amend and add the FLSA claim, but it rejected
that option.” Ante, at 13. That is significant, the majority says, because “it
was no abuse of discretion for the district court to deny an amendment”—
and what’s more, “Bye failed to address this aspect of the court’s decision
and has [thus] forfeited any challenge to it.” Id. at 13–14. And in the absence
of an amendment, the majority contends, Bye’s FLSA claim conflicts with
the established principle that “new claims need not be considered when first
raised in responses to summary judgment motions.”
Id. at 11.
But Johnson makes clear that there was no need for Bye to amend her
complaint.
To begin with, no amendment was necessary because the complaint is
already sufficient. That’s the whole point of Johnson: Facts are enough—
and legal theory is not required—to state a claim. See 574 U.S. at 12 (“no
more” is “required” than providing a “factual basis for the[] complaint,”
and “it is unnecessary to set out a legal theory”) (quotations omitted).
What’s more, the Court noted that the plaintiffs there should “be
accorded an opportunity” to amend their complaint—but only for purposes
of “clarification,” not legal mandate. See id. (“For clarification and to ward
off further insistence on a punctiliously stated ‘theory of the pleadings,’
petitioners, on remand, should be accorded an opportunity to add to their
complaint a citation to § 1983.”); see also Koger, 950 F.3d at 975 (under
Johnson, plaintiff “did not need to amend the complaint”).
3. Finally, the majority observes that Bye failed to allege damages
in the form of either “unpaid minimum wage or overtime,” as contemplated
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by 29 U.S.C. § 216(b). Ante, at 12. But that is not surprising. As the Labor
Department has noted, unpaid minimum wages and overtime compensation
are not the appropriate remedies for violations of the FLSA nursing provision
“in most circumstances.” 1 I have found no circuit opinions to date that
analyze what remedies are available under
29 U.S.C. § 207(r)(2) for plaintiffs
like Bye. But in all events, the point is that the district court should have
decided Bye’s FLSA claim on the merits, rather than refuse to consider her
claim altogether.
…
I agree with the majority with respect to the Title VII claim. I disagree
as to the FLSA claim. Accordingly, I concur in part and dissent in part.
1
See, e.g., Reasonable Break Time for Nursing Mothers, 75 Fed. Reg. 80073-01, 80078
(Dec. 21, 2010) (“Section 7(r) of the FLSA does not specify any penalties if an employer is
found to have violated the break time for nursing mothers requirement. In most instances,
an employee may only bring an action for unpaid minimum wages or unpaid overtime
compensation and an additional equal amount in liquidated damages. 29 U.S.C. 216(b).
Because 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.”); see also
29 U.S.C. §
207(r)(2) (“An employer shall not be required to compensate an employee receiving
reasonable break time under paragraph (1) for any work time spent for such purpose.”).
20
