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Ducharme v. Crescent City Deja Vu, L.L.C.

United States District Court, E.D. Louisiana

May 13, 2019

NICOLE DUCHARME, Plaintiff
v.
CRESCENT CITY DÉJÀ VU, L.L.C., ET AL., Defendants

         DIVISION: 1

          ORDER AND REASONS

          JANIS VAN MEERVELD, UNITED STATES MAGISTRATE JUDGE

         Before the Court are:

(1) Crescent City Déjà Vu, L.L.C.'s Motion for Judgment on the Pleadings regarding Nicole Ducharme's claims under the federal Pregnancy Discrimination Act and the Louisiana Pregnancy Discrimination Act (Rec. Doc. 62); and
(2) the Motion for Summary Judgment seeking dismissal of all of Nicole Ducharme's present claims filed by defendants Crescent City Deja Vu, L.L.C. (“CCDV”) and Mary Salzer (Rec. Doc. 61).

         For the following reasons, CCDV's Motion for Judgment on the Pleadings is DENIED in part and DENIED as moot in part; and Defendants' Motion for Summary Judgment is GRANTED as to Ms. Ducharme's discrimination claims under Title VII and the Louisiana Employment Discrimination Law, and as to Ms. Ducharme's Fair Labor Standards Act claims, the Motion remains under submission.

         Background

         Plaintiff Nicole Ducharme alleges that defendants violated Title VII of the Civil Rights Act and the Louisiana Pregnancy Discrimination Act (“LPDA”) when she was unlawfully fired from her employment at the Déjà Vu Bar & Grill[1] where she worked as a bartender and server after terminating her pregnancy. She also alleges that the defendants violated her rights under the Fair Labor Standards Act (“FLSA”) by failing to make required disclosures about the tip credit they were taking, by requiring her to “tip out” employees who worked in the kitchen, and by requiring her to perform tasks she could not get tipped for (like cleaning, stocking, and ordering products) without paying minimum wages for those tasks. Ducharme filed this lawsuit against her employer CCDV and her manager Ms. Salzer on April 30, 2018. The parties consented to proceed before the undersigned magistrate judge, and trial is set to begin on June 10, 2019.

         Facts Relevant to Discrimination Claims

         In September 2017, Ms. Ducharme told Ms. Salzer that she had become pregnant and that she was planning on having an abortion. Salzer Decl., Rec. Doc. 61-3, at 3. She requested two days off to have the procedure, and Ms. Salzer said she could and arranged the schedule accordingly. Id. Ms. Salzer declared that she “was not upset at Nicole for having an abortion, ” and she has no opinion about abortion. Id. at 28-30; Salzer Depo., Rec. Doc. 61-7, at 106-108. In her brief, she asserts that she did not have any reaction to the news of Ms. Ducharme's plan to abort. Ms. Ducharme disputes this characterization of Ms. Salzer's reaction. Ms. Ducharme testified that Ms. Salzer began treating her “crappily” and “indifferently, ” and changed her mind about giving Ms. Ducharme a ride. Ducharme Depo., Rec. Doc. 61-9, at 77. Ms. Salzer asserts that while Ms. Ducharme was off work to have the procedure, server John Robarge came to her and told her that he had seen Ms. Ducharme drinking many times while she was still on the clock, but after Ms. Salzer had left for the day. Salzer Decl., Rec. Doc. 61-3, at 3. In his declaration, Mr. Robarge confirmed that he informed Ms. Salzer that he had seen Ms. Ducharme drinking. Robarge Decl., Rec. Doc. 61-6, at 2. Ms. Salzer asserts that she went to the security tapes to see if she could confirm that Ms. Ducharme was drinking while on the clock. Salzer Decl., Rec. Doc. 61-3, at 3. She observed Ms. Ducharme making an alcoholic drink and drinking it while still behind the bar. Id. The video also shows Ms. Ducharme giving a drink to another person without charging him for it. Id. CCDV decided to terminate Ms. Ducharme for drinking on the job. Ducharme Separation Notice, Rec. Doc. 61-14. The CCDV handbook provides that AN EMPLOYEE INVOLVED IN ANY OF THE FOLLOWING CONDUCT MAY RESULT IN DISCIPLINARY ACTION UP TO AND INCLUDING IMMEDIATE TERMINATION WITHOUT A WRITTEN WARNING. CCDV Handbook, Rec. Doc. 61-10, at 10-11. The referenced list of infractions includes “[u]se of or being under the influence of alcohol during scheduled shift.” Id. And Ms. Ducharme admitted that she knew there was a rule against drinking alcohol on the job, although she contends that everyone did so anyways. Ducharme Depo., Rec. Doc. 61-9, at 16. Ms. Salzer testified that she had previously given Ms. Ducharme a verbal warning that she was not allowed to drink on the job. Salzer Depo., Rec. Doc. 61-7, at 3-4. Ms. Ducharme disputes this and has declared that she never received a verbal warning. Ducharme Decl., Rec. Doc. 68-2, at 1.

         Ms. Salzer says she also looked at the tapes to see if Ms. Ducharme's boyfriend, Marshall Rudd, was drinking on the job. Salzer Decl., Rec. Doc. 61-3, at 3. She had heard rumors that he had been drinking, but because he works the graveyard shift, Ms. Salzer had never confirmed it. Id. After watching the video for a brief time, she saw Mr. Rudd pouring a drink and drinking it while on the clock. Id. She decided to terminate him as well. Id.

         Motions before the Court

         CCDV has filed a Motion for Judgment on the Pleadings regarding Ms. Ducharme's claims under the federal Pregnancy Discrimination Act and the LPDA for failing to plead the requisite number of employees for the PDA or LPDA to apply and arguing further that neither the PDA nor the LPDA recognize an abortion as a protected characteristic. CCDV and Ms. Salzer have filed a Motion for Summary Judgment, arguing that Ms. Ducharme's FLSA minimum wage claim fails because she earned more than the minimum wage, that her tip pool claim fails because there was no tip pool, and that her unlawful termination claim fails because she admits to drinking on the job in violation of CCDV rules. They urge that Ms. Ducharme's lawsuit should be dismissed in its entirety. At this time, the Court addresses CCDV's motion for summary judgment on Ms. Ducharme's unlawful termination claim. The court will address the remainder of defendants' motion for summary judgment at the same time as it addresses Ms. Ducharme's pending Motion for Partial Summary Judgment arguing that CCDV failed to provide Ms. Ducharme with the FLSA required notifications before an employer can take a tip credit.

         Law and Analysis

         1. Standard for Judgment on the Pleadings

         “A motion for judgment on the pleadings under Rule 12(c) is subject to the same standard as a motion to dismiss under Rule 12(b)(6).” Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008). “[T]he central issue is whether, in the light most favorable to the plaintiff, the complaint states a valid claim for relief.” Id. (quoting Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 420 (5th Cir. 2001) (alteration in original). “The court's review is limited to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).

         To survive a motion for judgment on the pleadings or a Rule 12(b)(6) motion to dismiss, “the plaintiff must plead enough facts to state a claim to relief that is plausible on its face. Factual allegations must be enough to raise a right to relief above the speculative level.” In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007). On that point, the United States Supreme Court has explained:

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations and quotation marks omitted).

         a. Number of Employees

         CCDV argues that judgment on the pleadings is appropriate as to Ducharme's pregnancy discrimination claims because she has failed to plead any facts that would satisfy her burden of proving that CCDV has the requisite number of employees for Title VII or the LPDA to apply. Title VII applies to employers who have “fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.” 42 U.S.C. § 2000e(b). The LPDA applies to employers who employ “more than twenty-five employees within this state for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.” La. Rev. Stat. § 23:341(A). CCDV points out that neither Ducharme's First Amended Complaint nor her proposed Second Amended Complaint contain any allegations regarding the number of individuals employed by CCDV.

         Ms. Ducharme admits that her complaint does not explicitly allege that CCDV had more than 15 or 25 employees. (Rec. Doc. 70, at 3). But, she points out that the complaint references Ms. Ducharme's work schedule. In opposition to CCDV's motion, she attaches a schedule dated August 28, 2017 that lists 26 employees. She argues that this document should be incorporated by reference into her pleadings. Alternatively, she requests leave to amend to explicitly allege that CCDV has more than 25 employees.

         In reply, CCDV argues that the work schedule cannot be incorporated by reference because the August 28, 2017, schedule is not referred to specifically, nor is it central to Ms. Ducharme's claims as required for documents to be considered part of the pleadings. Even if the document was considered by the court, CCDV submits that Ms. Ducharme still has not met the pleading requirements because the one-week schedule does not show 26 employees (according to CCDV, one of the individuals listed was an IT consultant according to a declaration submitted with CCDV's reply memorandum), nor does it show that CCDV had more than 25 employees for more than twenty calendar weeks. Finally, CCDV argues that Ducharme should not be allowed to amend her complaint because she has already done so once and has sought to do so a second time without alleging a number of employees.

         The court finds that Ms. Ducharme's pleading fails to sufficiently allege the minimum number of employees under Title VII or LPDA. References to being off the schedule or checking her schedule are insufficient to incorporate the August 28, 2017, schedule into the complaint. Moreover, even if it had been incorporated, as CCDV argues, that schedule is insufficient to amount to an allegation of the minimum number of employees for the minimum number of weeks. This leaves the issue of whether Ms. Ducharme should be allowed to amend her complaint to correct this deficiency.

         The court finds it appropriate to allow Ms. Ducharme to amend her pleading to allege the number of employees. As discussed below, the parties have briefed the merits of the issue, and it is clear that Ms. Ducharme has sufficient evidence as to whether CCDV has the requisite number of employees to survive summary judgment. Her amendment is, thus, important so that she can maintain her claim. Further, the court finds that CCDV would not suffer any prejudice by the amendment being allowed. It has defended this lawsuit for over a year without asserting that it is not covered by Title VII or the LDPA.

         Nonetheless, because the court has determined it most efficient to address the merits of Ms. Ducharme's discrimination claims and has concluded that Ms. Ducharme cannot survive summary judgment, it will not be necessary for Ms. Ducharme to file an amended pleading at this time. In assessing defendants' motion for summary judgment, the court has assumed that Ms. Ducharme had already properly plead the number of employees. Accordingly, as to number of employees alleged, the motion for judgment on the pleadings is DENIED as moot.

         b. Abortion as a Protected Characteristic Under Title VII

         CCDV argues that Ducharme's pregnancy discrimination claims should be dismissed because Title VII does not recognize abortion as a protected characteristic. Title VII as amended by the Pregnancy Discrimination Act prohibits employers from taking adverse employment actions “because of or on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. §2000e(k). It also provides that:

women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.

Id. CCDV argues that abortion is not pregnancy, childbirth, or a medical condition related to pregnancy and that Congress could have included abortion as a protected characteristic but did not do so. It insists that when interpreting statutory text, the court's “task is to give effect to the language Congress has enacted, not to read additional meaning into the statute that its terms do not convey.” Yates v. Collier, 868 F.3d 354, 369 (5th Cir. 2017). CCDV notes that although other circuits have found abortion to be a protected characteristic, the Fifth Circuit has not done so.

         In opposition, Ducharme points out that the only appellate courts to have addressed the issue of whether abortion is covered by Title VII have found that it is. Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 364 (3d Cir.), order clarified on other grounds, 543 F.3d 178 (3d Cir. 2008) (“Clearly, the plain language of the statute, together with the legislative history and the EEOC guidelines, support a conclusion that an employer may not discriminate against a woman employee because she has exercised her right to have an abortion. We now hold that the term ‘related medical conditions' includes an abortion.”); Turic v. Holland Hosp., Inc., 85 F.3d 1211, 1214 (6th Cir. 1996) (“Thus, the plain language of the statute, the legislative history and the EEOC guidelines clearly indicate that an employer may not discriminate against a woman employee because ‘she has exercised her right to have an abortion.'). Ducharme cites to legislative history indicating that abortion is covered by the pregnancy language. H.R. Rep. No. 95-948, at 7 (1978), as reprinted in 1978 U.S.C.C.A.N. 4749, 4755 (“Because the bill applies to all situations in which women are ‘affected by pregnancy, childbirth, and related medical conditions,' its basic language covers decisions by women who chose to terminate their pregnancies. Thus, no employer may, for example, fire or refuse to hire a woman simply because she has exercised her right to have an abortion.”). She also points out that the Equal Employment Opportunity Commission guidelines provide that

The basic principle of the Act is that women affected by pregnancy and related conditions must be treated the same as other applicants and employees on the basis of their ability or inability to work. A woman is therefore protected against such practices as being fired, or refused a job or promotion, merely because she is pregnant or has had an abortion.

29 C.F.R. § 1604, App. She adds that although the Fifth Circuit has not addressed abortion, it has found other pregnancy related medical conditions are covered. E.g., E.E.O.C. v. Houston Funding II, Ltd., 717 F.3d 425, 428 (5th Cir. 2013) (“[W]e hold that lactation is a related medical condition of pregnancy for purposes of the PDA.”) Harper v. Thiokol Chem. Corp., 619 F.2d 489, 491-92 (5th Cir. 1980) (“[P]olicy of requiring women who have been on pregnancy leave to have sustained a normal menstrual cycle before they can return to work clearly deprives female employees of employment opportunities and imposes on them a burden which male employees need not suffer.”).

         In reply, CCDV insists the scope of Title VII is an undecided issue in the Fifth Circuit. It argues that reference to the legislative history is inappropriate where the statutory text is clear. It adds that Ms. Ducharme has cited the deliberations of the House Committee on Education and Labor and that these notes do not amount to legislative history. CCDV seeks to distinguish the Fifth Circuit cases regarding pregnancy related medical conditions like lactation and menstruation by arguing that Ms. Ducharme has not alleged that CCDV discriminated against her because of any medical condition that led to her decision to undergo an abortion. Instead, CCDV insists, she alleges the abortion itself led to her termination.

         The court notes that in paragraph 26 of Ms. Ducharme's complaint, she states that she got very sick and anemic during her pregnancy, that she had health problems including gestational diabetes and hypertension during a previous pregnancy, and that she was forty years old and had concerns with being pregnant for that reason. (Rec. Doc. 25, at 3-4). She asserts that she decided to get a “medical abortion.” Id. at 4. She alleges that when she informed her supervisor, Ms. Salzer, that she needed two days off to get an abortion, Ms. Salzer gave her a serious and disapproving look. Id. She alleges that she then told Ms. Salzer her ...


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