United States District Court, E.D. Louisiana
ORDER AND REASONS
VAN MEERVELD, UNITED STATES MAGISTRATE JUDGE
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).
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.
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 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.
Relevant to Discrimination Claims
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.
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.
before the Court
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.
Standard for Judgment on the Pleadings
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).
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).
Number of Employees
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.
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.
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.
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.
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.
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
Abortion as a Protected Characteristic Under Title VII
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
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.
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.”).
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
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 ...