Bye v. MGM Resorts Int'l, Inc.
| Decision Date | 28 September 2022 |
| Docket Number | 22-60034 |
| Parties | Bailie BYE, Plaintiff—Appellant, v. MGM RESORTS INTERNATIONAL, INCORPORATED, doing business as Beau Rivage Resort and Casino, Defendant—Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
49 F.4th 918
Bailie BYE, Plaintiff—Appellant,
v.
MGM RESORTS INTERNATIONAL, INCORPORATED, doing business as Beau Rivage Resort and Casino, Defendant—Appellee.
No. 22-60034
United States Court of Appeals, Fifth Circuit.
FILED September 28, 2022
Daniel Myers Waide, Esq., Johnson, Ratliff & Waide, Hattiesburg, MS, for Plaintiff—Appellant.
Tammy Lynn Baker, Attorney, Jackson Lewis, P.C., Birmingham, AL, for Defendant—Appellee.
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, 190 L.Ed.2d 309 (2014) (per curiam) is inapposite. The judgment is AFFIRMED.
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 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 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 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, 91 L.Ed.2d 265 (1986). But "[o]nce...
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