Ducharme v. Crescent City DéJà Vu, L.L.C.
| Decision Date | 13 May 2019 |
| Docket Number | CIVIL ACTION NO. 18-4484 |
| Citation | 406 F.Supp.3d 548 |
| Parties | Nicole DUCHARME, Plaintiff v. CRESCENT CITY DÉJÀ VU, L.L.C., et al., Defendants |
| Court | U.S. District Court — Eastern District of Louisiana |
William Brock Most, Amanda Leah Hass, David Joseph Lanser, Law Office of William Most, New Orleans, LA, for Plaintiff.
Charles J. Stiegler, Stiegler Law Firm LLC, Elspeth Louise Doskey, Renee Gluth Culotta, Frilot L.L.C., New Orleans, LA, for Defendants.
DIVISION: 1
ORDER AND REASONS
Janis van Meerveld, United States Magistrate Judge
Before the Court are:
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.
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 & Grill1 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.
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.
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.
"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, 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citations and quotation marks omitted).
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...
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...termination after seeking leaves of absence for infertility treatments violated Title VII); Ducharme v. Crescent City Déjà Vu, L.L.C., 406 F. Supp. 3d 548, 556 (E.D. La. 2019) (abortion is a related medical condition to pregnancy under the PDA). While the Fifth Circuit in Harper and Houston......