ORDER finding as moot 44 Motion for Summary Judgment; granting 46 Motion for Summary Judgment; denying 69 Motion for Hearing/Oral Argument; finding as moot 72 Motion to Strike ; finding as moot 75 Motion to Strike ; finding as moot 85 Motion to Continue; finding as moot 87 Motion in Limine; finding as moot 31 Motion. Signed by Senior Judge Robert W. Pratt on 10/16/2012. (mlm, ) (Entered: 10/16/2012)
Page 1 IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION
ANGELA AMES,
Plaintiff,
v.
NATIONWIDE MUTUAL INSURANCE
CO., NATIONWIDE ADVANTAGE
MORTGAGE CO., and KARLA NEEL,
Defendants.
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4:11-cv-00359 RP-RAW
MEMORANDUM OPINION
AND ORDER
Before the Court is Nationwide Mutual Insurance Company’s, Nationwide Advantage
Mortgage Company’s (collectively “Nationwide”), and Karla Neel’s (“Neel”) (collectively the
“Nationwide Defendants” or “Defendants”) Amended Motion for Summary Judgement and
Request for Oral Argument (“MSJ”), filed July 24, 2012.1 Clerk’s No. 46. On August 20, 2012,
Plaintiff Angela Ames (“Ames”) timely resisted the Motion. Clerk’s No. 62. Defendants replied
on August 30, 2012. Clerk’s No. 70. This matter is fully submitted.I. FACTUAL BACKGROUND
Ames’s at-will employment as a loss mitigation specialist at Nationwide lasted from
On July 23, 2012, Defendants filed an MSJ that did not request oral argument. See
Clerk’s No. 44. The next day, on July 24, 2012, Defendants amended the Motion by including
such a request. See Clerk’s No. 46.
On August 30, 2012, Ames requested an oral argument on the pending MSJ. Clerk’s No.
69. The Court, however, does not believe that an oral argument would substantially aid it in
ruling on the motion. See LR 7(c). Accordingly, Ames’s Motion for Hearing/Oral Argument
(Clerk’s No. 69) is denied.
2Page 2 October 20083 to July 19, 2010. Nationwide’s Statement of Undisputed Facts in Supp. of MSJ
(“Nationwide’s Facts”) ¶¶ 1–3, 43; Pl.’s Resp. to Nationwide’s Facts (“Ames’s Facts”) ¶¶ 1–4.
Following the birth of her first child on May 2, 2009, Ames took eight weeks of maternity leave.
See Nationwide’s Facts ¶ 52; Ames’s Facts ¶ 52; Ames’s Statement of Add’l Material Facts
(“Ames’s Add’l Facts”) ¶ 2. In October 2009, Ames found out that she was pregnant again. See
Ames’s Add’l Facts ¶ 3. Due to pregnancy complications, she began her maternity leave on
April 11, 2010 prior to giving birth to her second child. See id. ¶¶ 5–6. Initially, Nationwide
advised Ames that her maternity leave would expire on August 2, 2010.4 See id. ¶¶ 16–17;
Nationwide’s Facts ¶ 52. In a June 16, 20105 telephone call between Neel6 and Ames, however,
Neel advised Ames that there had been a mistake in calculating her maternity leave and that
Ames’s leave would expire on July 12, 2010 rather than on August 2, 2010.7 See Ames’s Add’l
The parties report different employment start dates. Ames states that she began work at
Nationwide on or about October 1, 2008. See Pl.’s Resp. to Nationwide’s Facts (“Ames’s
Facts”) ¶ 1. Nationwide, on the other hand, states that Ames’s employment began on October
20, 2008. See Nationwide’s Statement of Undisputed Facts in Supp. of MSJ ¶ 1.
Due to what the Court perceives to be a typographical error, Nationwide reports that
Ames’s maternity leave was to end on August 2, 2012. See Nationwide’s Facts ¶ 52.
In her Complaint, Ames alleges that the telephone call took place on June 21, 2010. See
Am. Compl. ¶ 20.
At all relevant times, Neel was an Associate Vice President, who was in charge of
overseeing the Loss Mitigation Department. See Nationwide’s Facts ¶ 5; App. to Nationwide’s
MSJ (“Nationwide’s App.”) at 54, p. 10:13–25.
The parties disagree as to whether Nationwide allowed Ames to return to work on August
2, 2010. Compare Ames’s Statement of Add’l Material Facts ¶ 20 (stating that, during the June
16, 2010 telephone call, “Neel[] insinuat[ed] that [Ames] would be disciplined (if not fired) if
she did not return to work on July 19, 2010”) with Nationwide’s Facts ¶ 53 (stating that
Nationwide allowed Ames to take until August 2, 2010 before returning to work).
Page 3 Facts ¶ 16; Nationwide’s Facts ¶¶ 51–52; App. to Nationwide’s MSJ (“Nationwide’s App.”) at
204. As agreed during this telephone call, Ames returned to work on July 19, 2010 at
approximately 10:00 a.m.8 See Ames’s Add’l Facts ¶ 22. She resigned from her position three
hours later. See Nationwide’s Facts ¶¶ 43, 70. The parties disagree on what exactly transpired
over those three hours.
Shortly after reporting to work on July 19, 2010, Ames needed to express milk.9 See Pl.’s
App. in Supp. of Her Resistance to Nationwide’s MSJ (“Ames’s App.”) at 4–5. When Ames told
Sara Sagers, presently Sara Hallberg (“Hallberg”),10 that she had to express milk immediately,
Hallberg responded that Ames had to fill out paperwork11 before being able to use one of the
Ames reported to work around 10:00 a.m. because she had to take her newborn son to a
routine doctor’s appointment. See Ames’s Add’l Facts ¶ 22.
Ames states that, at the time, she was nursing her baby every three hours. See Pl.’s App.
in Supp. of Her Resistance to Nationwide’s MSJ at 4, p. 68:21–5, p. 69:2. On July 19, 2010, her
first day following her maternity leave, Ames expressed milk around 6:30 a.m. See id. at 4, p.
68:16–20. Therefore, more than three hours had gone by when Ames reported to work.
Hallberg was employed by Nationwide as a nurse. See Ames’s App. at 30:9–11.
There was a three-day waiting period before the paperwork could be processed and Ames
given access to a lactation room. See Ames’s App. at 7, p. 81:16–19; Nationwide’s App. at
150–51. Ames claims that no one had ever advised her of this waiting period. See Ames’s App.
at 7, p. 82:20–24. Nationwide disagrees and points out that its lactation policy was available to
Ames online, that Ames did not ask any questions regarding the lactation policy, and that she did
not attend any of the quarterly maternity meetings although she knew about them. See App.
Nationwide’s App. at 84:14–85:16; 93:14–23; 81:5–14.
When, on July 19, 2010, it became clear that Ames had not filled out the paperwork
requesting access to a lactation room, Hallberg sent two emails. The first one was addressed to
Ames and contained Nationwide’s lactation policy, which consists of approximately three pages.
See Nationwide’s App. at 148–51. With her second email, Hallberg requested expedited
processing of Ames’s application for access to a lactation room. See id. at 152. Page 4 lactation rooms.12 See id. at 7, p. 82:13–19. To accommodate Ames’s need to immediately
express milk, Hallberg suggested that she use one of the wellness rooms13 or Hallberg’s office.See Nationwide’s App. at 72:5–21; 73:4–8. Ames chose a wellness room that was going to
become available shortly.15 See id. at 73:21–25; Ames’s App. at 91 ¶ 9.
While waiting on the wellness room, Ames met with Brian Brinks16 (“Brinks”) “to catch
up on the status of [her] work.” Ames’s App. at 91 ¶ 11. Ames asserts that Brinks had promised
to take over her work while she was on maternity leave, but that nothing had been done. See id.
at 43. Ames also claims that, during the meeting, Brinks told her that she had two weeks to catch
up, that she had to work overtime to accomplish that, and that if she failed to catch up within two
weeks, she would be disciplined. See id.; see also id. at 91 ¶ 12; Nationwide’s App. at 52, pp.
80:15–82:25. Nationwide agrees that such a meeting took place, but disagrees with Ames’s
account of the conversation between her and Brinks. Specifically, Nationwide asserts that
Nationwide had three lactation rooms at that time. See Nationwide’s Facts ¶ 65.
Ames asserts that Hallberg advised her not to express milk in a wellness room because
her milk may be exposed to germs. See Ames’s App. at 7, p. 81:19–23. Nationwide denies this
allegation. See id. at 31:1–13.
Ames disputes that Hallberg ever suggested that Ames could use her office to pump milk.
See Ames’s App. at 91 ¶ 15.
Ames alleges that Hallberg told her that the available wellness room was currently
occupied by a sick person and “the lock . . . was broken, so if [Ames] wanted any semblance of
privacy, [she] would need to put a chair against the door and sit in it while [she] pumped, so that
anyone trying to come in would strike [her] chair with the door and hopefully be discouraged
from entering. ” See Ames’s App. at 91 ¶¶ 9–10. Nationwide denies these allegations. See id. at
31:14–20.
Brian Brinks was Ames’s immediate supervisor. See Nationwide’s App. at 47, p.
10:16–19. Page 5 Ames’s “work queue was up to date” when she came back to work on July 19, 2010.17 See
Nationwide’s App. at 52, p. 79:5–11. Furthermore, Brinks testified that “[o]vertime was
voluntary,” and that Ames was not required to work overtime. See id. at 52, p. 79:12–21.
Finally, Brinks denies telling Ames that he would start writing her up if she did not get caught up
on her work within two weeks. See id. at 52, pp. 80:15–81:5.
The unavailability of a lactation room, her urgent need to express milk, and Nationwide’s
“unrealistic and unreasonable expectations about her work production” caused Ames to resign
from her position because she “felt like she had no other choice.” See Am. Compl. ¶ 44. Ames
sued the Nationwide Defendants alleging: (1) sex and pregnancy discrimination under the Iowa
Civil Rights Act (“ICRA”), see Am. Compl. ¶¶ 51–54; (2) pregnancy and sex discrimination
under Title VII of the Civil Rights Act of 1964 (“Title VII”), see Am. Compl. ¶¶ 55–58; and (3)
violation of § 207 of the Fair Labor Standards Act (“FLSA”),18 see Am. Compl. ¶¶ 59–64. Ames
contends that Hallberg, Neel, Brinks, and Somphong Baccam (“Baccam”)19 discriminated against
her on the basis of sex, pregnancy, and nursing. See Nationwide’s App. at 86–93.
Specifically, Ames states that Hallberg discriminated against her by “providing a letter . .
. stat[ing] there was a three-day waiting period . . . to access a lactation room,” by offering her a
wellness room, and by advising Ames that her “milk could not be guaranteed” if she used a
Actually, Nationwide states that Ames’s “queue” was in much better condition when she
returned to work as compared to when she went on maternity leave. See Nationwide’s Facts ¶
74; Nationwide’s App. at 52, p. 79:10–11; 213–58.
Ames calls this alleged violation of section 207 of the FLSA “nursing discrimination.”
See Am. Compl. ¶ 1.
Baccam was the Nationwide disability case nurse assigned to Ames’s case. See
Nationwide’s Facts ¶ 61.
Page 6 wellness room. See id. at 87:11–23. Neel subjected Ames to discrimination by “eye-rolling,” by
telling Ames that Neel did not have to go on bed rest during her pregnancy,20 by stating that Neel
would never have a baby shower before her baby is born because the baby could die, and because
“[t]here was always a negative innuendo from [Neel] to [Ames.]” See id. at 88:17–89:16. With
respect to Brinks, Ames complains that he viewed her pregnancy as an inconvenience, refused to
help her lift a filing cabinet on one occasion, and made certain comments concerning Ames’s
maternity leave.21 See id. at 89:17–90:20. Lastly, Ames contends that Baccam discriminated
against her because Baccam had more information about Nationwide’s lactation policy but did
not share her knowledge with Ames, nor did she advise Ames to review the lactation policy on
her own. See id. at 93:14–23.
II. STANDARD FOR SUMMARY JUDGMENT
The term “summary judgment” is something of a misnomer. See D. Brock Hornby,
Summary Judgment Without Illusions, 13 Green Bag 2d 273 (Spring 2010). It “suggests a
judicial process that is simple, abbreviated, and inexpensive,” while in reality, the process is
Ames testified that Neel made the following comments regarding Ames’s pregnancy: ‘“I
never had this many problems when I was pregnant. All I needed was a pocketful of Tums, and I
was good to go.’” Nationwide’s App. at 92:15–17. Ames also claims that Neel “comment[ed]
on [her] size, about [her] carrying more than one baby because [she] was so big.” Id. at
92:17–19.
With respect to Brinks’s alleged comments, Ames testified as follows:
“Oh, yeah, I’m teasing her about only taking a week’s worth of maternity leave.
We’re too busy for her to take off that much work.” And everyone would chime in
with “Oh, yeah,” you know, “she can only be gone for a week. She already took her
eight weeks with Henry.”
Nationwide’s App. at 90:13–18. Page 7 complicated, time-consuming, and expensive.22 Id. at 273, 281. The complexity of the process,
however, reflects the “complexity of law and life.” Id. at 281. “Since the constitutional right to
jury trial is at stake,” judges must engage in a “paper-intensive and often tedious” process to
“assiduously avoid deciding disputed facts or inferences” in a quest to determine whether a
record contains genuine factual disputes that necessitate a trial. Id. at 281–82. Despite the
seeming inaptness of the name, and the desire for some in the plaintiffs’ bar to be rid of it, the
summary judgment process is well-accepted and appears “here to stay.”23 Id. at 281. Indeed,
“judges are duty-bound to resolve legal disputes, no matter how close the call.” Id. at 287.
Federal Rule of Civil Procedure 56(a) provides that “[a] party may move for summary
judgment, identifying each claim or defense—or the part of each claim or defense—on which
summary judgment is sought.” “[S]ummary judgment is an extreme remedy, and one which is
not to be granted unless the movant has established his right to a judgment with such clarity as to
leave no room for controversy and that the other party is not entitled to recover under any
discernible circumstances.” Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207,
209 (8th Cir. 1976) (citing Windsor v. Bethesda Gen. Hosp., 523 F.2d 891, 893 n.5 (8th Cir.
1975)). The purpose of summary judgment is not “to cut litigants off from their right of trial by
Indeed, Judge Hornby, a District Court judge for the District of Maine, convincingly
suggests that the name “summary judgment” should be changed to “motion for judgment without
trial.” 13 Green Bag 2d at 284.
Judge Hornby notes that over seventy years of Supreme Court jurisprudence gives no hint
that the summary judgment process is unconstitutional under the Seventh Amendment. Id. at (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 336 (1979) and Sartor v. Arkansas Natural
Gas Corp., 321 U.S. 620, 627 (1944)). While he recognizes that not much can be done to reduce
the complexity of the summary judgment process, he nonetheless makes a strong case for
improvements in it, including, amongst other things, improved terminology and expectations and
increased pre-summary judgment court involvement. See id. at 283–88.
Page 8 jury if they really have issues to try.” Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, (1962) (quoting Sartor v. Ark. Natural Gas Corp., 321 U.S. 620, 627 (1944)). Rather, it is
designed to avoid “useless, expensive and time-consuming trials where there is actually no
genuine, factual issue remaining to be tried.” Anderson v. Viking Pump Div., Houdaille Indus.,
Inc., 545 F.2d 1127, 1129 (8th Cir. 1976) (citing Lyons v. Bd. of Educ., 523 F.2d 340, 347 (8th
Cir. 1975)). Summary judgment can be entered against a party if that party fails to make a
showing sufficient to establish the existence of an element essential to its case, and on which that
party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, (1986).
Federal Rule of Civil Procedure 56 mandates the entry of summary judgment upon
motion after there has been adequate time for discovery. Summary judgment is appropriately
granted when the record, viewed in the light most favorable to the nonmoving party and giving
that party the benefit of all reasonable inferences, shows that there is no genuine issue of material
fact, and that the moving party is therefore entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(a); Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994). The
Court does not weigh the evidence, nor does it make credibility determinations. The Court only
determines whether there are any disputed issues and, if so, whether those issues are both
genuine and material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Wilson v.
Myers, 823 F.2d 253, 256 (8th Cir. 1987) (“Summary judgment is not designed to weed out
dubious claims, but to eliminate those claims with no basis in material fact.”) (citing
Weightwatchers of Quebec, Ltd. v. Weightwatchers Int’l, Inc., 398 F. Supp. 1047, (E.D.N.Y. 1975)). Page 9 In a summary judgment motion, the moving party bears the initial burden of
demonstrating the absence of a genuine issue of material fact based on the pleadings, depositions,
answers to interrogatories, admissions on file, and affidavits, if any. See Celotex, 477 U.S. at
323; Anderson, 477 U.S. at 248. If the moving party has carried its burden, the nonmoving party
must then go beyond its original pleadings and designate specific facts showing that there
remains a genuine issue of material fact that needs to be resolved by a trial. See Fed. R. Civ. P.
56(c). This additional showing can be by affidavits, depositions, answers to interrogatories, or
the admissions on file. Id.; Celotex, 477 U.S. at 322–23; Anderson, 477 U.S. at 257. “[T]he
mere existence of some alleged factual dispute between the parties will not defeat a motion for
summary judgment; the requirement is that there be no genuine issue of material fact.”
Anderson, 477 U.S. at 247–48. An issue is “genuine” if the evidence is sufficient to persuade a
reasonable jury to return a verdict for the nonmoving party. See id. at 248. “As to materiality,
the substantive law will identify which facts are material . . . . Factual disputes that are irrelevant
or unnecessary will not be counted.” Id.
Courts do not treat summary judgment as if it were a paper trial. Therefore, a “district
court’s role in deciding the motion is not to sift through the evidence, pondering the nuances and
inconsistencies, and decide whom to believe.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918,
920 (7th Cir. 1994). In a motion for summary judgment, the Court’s job is only to decide, based
on the evidentiary record that accompanies the moving and resistance filings of the parties,
whether there really is any material dispute of fact that still requires a trial. See id. (citing
Anderson, 477 U.S. at 249 and 10 Charles A. Wright & Arthur R. Miller, Federal Practice &
Procedure § 2712 (3d ed. 1998)). Page 10 III. LAW AND ANALYSIS
Defendants move for summary judgment on all three counts of Ames’s Amended
Complaint: (1) sex and pregnancy discrimination in violation of the ICRA, see Am. Compl. ¶¶
51–54; (2) sex and pregnancy discrimination in violation of Title VII, see Am. Compl. ¶¶ 55–58;
and (3) violation of 29 U.S.C. § 207, see Am. Compl. ¶¶ 59–64. See Br. in Supp. of Defs.’ MSJ
(“Nationwide’s Br.”) at 8–35.
A. 29 U.S.C. § 207(r)
Returning to work promptly after childbirth, coupled with the desire to continue breastfeeding, exposes women to a unique and often challenging set of circumstances. To many,
expressing breast milk in the workplace is incompatible with the desire to pursue a successful
career. With respect to these challenges and the resulting social response, the Honorable Lewis
A. Kaplan commented as follows:
The transformation in the role of women in our culture and workplace in recent
decades and the civil rights movement perhaps will be viewed as the defining social
changes in American society in this century. Both have resulted in important federal,
state and local legislation protecting those previously excluded from important roles
from discrimination in pursuit of the goal of equality. Nevertheless, few would deny
that the problems facing women who wish to bear children while pursuing
challenging careers at the same time remain substantial.
Martinez v. MSNBC, 49 F. Supp. 2d 305, 306 (S.D.N.Y. 1999). In Martinez, the plaintiff sued
her employer for being “insufficiently accommodating of [her] desire to pump breast milk in the
workplace so that she could breast[-]feed her child while also returning to work promptly after
childbirth.” Id.
In the present case, Ames makes similar allegations. Specifically, she claims that the
Nationwide Defendants violated 29 U.S.C. § 207(r) by failing to provide her, on July 19, 2010, Page 11 “with reasonable time to express breast milk in a private location, free from intrusion and
shielded from the view of the public or other employees, at the time necessary to express breast
milk.” Am. Compl. ¶ 60. Defendants respond by arguing that the FLSA does not provide a
private cause of action to redress alleged violations of 29 U.S.C. § 207(r).24 See Nationwide’s
Br. at 9. The Court agrees.
Although § 207(r) is relatively new,25 at least one court has wrestled with the issue
presently before the Court—whether the FLSA provides a private cause of action for violations
of § 207(r). See Salz v. Casey’s Mktg. Co., No. 11-cv-3055, 2012 U.S. Dist. LEXIS 100399, at
*6–7 (N.D. Iowa July 19, 2012). In holding that the FLSA does not provide a private cause of
action, the Honorable Donald E. O’Brien reasoned as follows:
The express breast milk provisions are codified at 29 U.S.C. § 207(r). 29 U.S.C. §
207(r) provides:
(r)(1) An employer shall provide—
(A) 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
(B) 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.
(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.
The enforcement [provision] for violations of 29 U.S.C. § 207 [is] 29 U.S.C. §
Even if there was a private cause of action, the Nationwide Defendants maintain that they
complied with 29 U.S.C. § 207(r). See Nationwide’s Br. at 9.
29 U.S.C. § 207(r) was enacted on March 23, 2010. Page 12 216(b). In pertinent part, 29 U.S.C. § 216(b) provides,
Any employer who violates the provisions of section . . . 207 of this
title shall be liable to the employee or employees affected in the
amount of their unpaid minimum wages, or their unpaid overtime
compensation, as the case may be, and in an additional equal amount
as liquidated damages.
Since Section 207(r)(2) provides that employers are not required to compensate
employees for time spent express milking [sic], and Section 216(b) provides that
enforcement of Section 207 is limited to unpaid wages, there does not appear to be
a manner of enforcing the express breast milk provisions. A recent notice from the
Department of Labor corroborates Defendant’s interpretation and limits an employee
to filing claims directly with the Department [of] Labor. Reasonable Break Time for
Nursing Mothers, 75 Fed. Reg. 80073, 80078 (Dec. 21, 2010). The Department of
Labor may then “seek injunctive relief in federal district court . . . .”
Id. Although Salz does not constitute binding authority, the Court finds its logic irrefutable and,
accordingly, adopts its holding.26 Therefore, since Ames cannot bring a claim for any alleged
violation of 29 U.S.C. § 207(r), the Court grants summary judgment for Defendants.
B. Sex, Pregnancy,27 and Nursing28 Discrimination
Since the Court holds that the FLSA does not provide a private cause of action to remedy
alleged violations of § 207(r), the Court need not decide whether, on July 19, 2010, the
Nationwide Defendants complied with this provision.
Under the Pregnancy Discrimination Act (“PDA”), pregnancy discrimination falls within
the scope of, and is a type of, gender discrimination. See Falk v. City of Glendale, No. 12-cv00925, 2012 U.S. Dist. LEXIS 87278, at *8 n.5 (D. Colo. June 25, 2012). Therefore, the Court
will analyze Ames’s claims for pregnancy and gender discrimination as a single claim. See id.
Ames argues that she is a member of a protected class—that of lactating mothers. See
Pl.’s Resistance Br. at 17–23. In support, Ames argues that lactation is a medical condition
related to her pregnancy. See id. at 17–18 (citing 42 U.S.C. § 2000e(k)). Several courts,
however, have considered and rejected the argument that terminating an employee due to
lactation is gender or pregnancy discrimination. See EEOC v. Houston Funding II, Ltd., et al.,
No. H-11-2442, 2012 U.S. Dist. LEXIS 13644, at *3–4 (S.D. Tex. Feb. 2, 2012) (“Firing
someone because of lactation or breast-pumping is not sex discrimination.”) (collecting cases).
In disputing the soundness of these cases’ legal analyses, Ames relies primarily on Falk. Page 13 Ames argues that the record in this case contains direct and circumstantial evidence that
the Nationwide Defendants illegally discriminated against her in violation of Title VII and the
ICRA. See Pl.’s Br. in Supp. of Resistance to Defs.’ MSJ (“Pl.’s Resistance Br.”) at 14–30.
Defendants disagree and assert that, on the present record, summary judgment is appropriate
See Pl.’s Resistance Br. at 19–20. After providing an overview of existing case law surrounding
lactation, the Falk court summarized:
As it stands, no existing case law correctly excludes lactation or other conditions
experienced by the mother as a result of breast-feeding from Title VII protection
under the PDA. A plaintiff could potentially succeed on a claim if she alleged and
was able to prove that lactation was a medical condition related to pregnancy, and
that this condition, and not a desire to breastfeed, was the reason for the
discriminatory action(s) that she suffered.
Falk, 2012 U.S. Dist. LEXIS 87278, at *13 n.7 (emphasis added). Ames has not presented
sufficient evidence that lactation is a medical condition related to pregnancy. Indeed, as the
Nationwide Defendants point out, “lactation can be induced by stimulating the body to produce
milk even though the person has not experienced a recent birth or pregnancy.” Defs.’ Reply Br.
in Supp. of MSJ (“Nationwide’s Reply Br.”) at 12 n.9. Additionally, the Court takes judicial
notice of the fact that adoptive mothers can also breast-feed their adoptive babies. See Defs.’
App. at 323–25 (stating that adoptive mothers can breast-feed their adoptive babies and
describing what adoptive mothers should do to stimulate milk production). Furthermore, it is a
scientific fact that even men have milk ducts and the hormones responsible for milk production.
See Nikhil Swaminathan, Strange but True: Males Can Lactate, SCI. AM ., Sept. 6, 2007,
available at
http://www.scientificamerican.com/article.cfm?id=strange-but-true-males-can-lactate&sc=rss.
Accordingly, lactation is not a physiological condition experienced exclusively by women who
have recently given birth.
Assuming, arguendo, that Ames had presented sufficient evidence that lactation was a
medical condition related to pregnancy, the Court is doubtful that she has presented enough facts
to establish that her alleged constructive discharge was due to her medical condition (lactation)
rather than due to her desire to breast-feed. See Falk, 2012 U.S. Dist. LEXIS 87278, at *13 n.7.
Indeed, Ames’s Amended Complaint contains several references to her desire to pump milk as a
form of nutrition for her newborn son. See Am. Compl. ¶¶ 22–23, 32, 42, 45. As Falk held,
however, “Title VII does not extend to breast-feeding as a child care concern.” Falk, 2012 U.S.
Dist. LEXIS 87278, at *10. Page 14 because: (1) Ames has not presented direct evidence of sex, pregnancy, or nursing
discrimination; and (2) Ames has not presented sufficient circumstantial evidence to establish a
prima facie case of sex, pregnancy, or nursing discrimination. See generally Nationwide’s Br. at
13–35; Defs.’ Reply Br. in Supp. of MSJ (“Nationwide’s Reply Br.”) at 7–19.
Federal case law supplies the basic framework for deciding cases under the ICRA. Quick
v. Donaldson Co., Inc., 90 F.3d 1372, 1380 (8th Cir. 1996) (citing Iowa State Fairgrounds Sec.
v. Iowa Civil Rights Comm’n, 322 N.W.2d 293, 296 (1982)). Iowa courts “traditionally turn to
federal law for guidance on evaluating the ICRA, but federal law . . . is not controlling.” Vivian
v. Madison, 601 N.W.2d 872, 873 (Iowa 1999) (citations omitted). Neither party posits any
separate legal arguments regarding Ames’s ICRA claim. The Court, therefore, will address
Ames’s federal and state law claims of sex, pregnancy, and nursing discrimination together.
The analytical framework for discrimination claims under Title VII uses two separate
frameworks to determine whether a plaintiff was subject to discrimination. The choice between
the two analyses depends on whether a plaintiff presents direct evidence of the alleged
discrimination, thereby warranting a “mixed motive” theory of analysis as explained in Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989), or indirect or circumstantial evidence of the
alleged discrimination which requires a “burden-shifting” framework of analysis under
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
1.
Direct evidence.
If a plaintiff produces direct evidence of the alleged discrimination, the plaintiff must
persuade the fact-finder under the “mixed motive” theory of analysis. The plaintiff must
persuade the fact-finder that, more likely than not, discrimination was “a motivating part in an Page 15 employment decision.” Price Waterhouse, 490 U.S. at 254. The burden then “shifts to the
employer to prove that the employment decision would nevertheless have been made for
legitimate, nondiscriminatory reasons.” Yates v. McDonnell-Douglas, 255 F.3d 546, 548 (8th
Cir. 2001). Direct evidence of discrimination has been defined by the Eighth Circuit as
“evidence or conduct or statements by persons involved in the decision-making process that is
sufficient for the fact-finder to find that a discriminatory attitude was more likely than not a
motivating factor in the employers’ decision.” Kerns v. Capital Graphics, Inc., 178 F.3d 1011,
1017 (8th Cir. 1999). The Eighth Circuit goes on to state that “such evidence might include
proof of an admission that gender was the reason for an action, discriminatory references to the
particular employee in a work context, or stated hostility to women being in the workplace at
all.” Id.; see also Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991) (“[D]irect evidence
may include evidence of actions or remarks of the employer that reflect a discriminatory
attitude[,] . . . [c]omments which demonstrate a ‘discriminatory animus in the decisional
process[,]’ . . . or those uttered by individuals closely involved in employment decisions.”
(citations omitted)). “[S]tray remarks in the workplace, statements by nondecisionmakers, [and]
statements by decisionmakers unrelated to the decisional process itself are not, however, direct
evidence of discrimination.” See Beshears, 930 F.2d at 1354 (citing Price Waterhouse, 490 U.S.
at 277 (O’Connor, J., concurring)) (internal quotation marks omitted).
In 1976, the U.S. Supreme Court held that pregnancy discrimination was not gender
discrimination. See Gen. Elec. Co. v. Gilbert, 429 U.S. 125 (1976). In response to Gilbert, in
1978, Congress passed the Pregnancy Discrimination Act (“PDA”). See Falk, 2012 U.S. Dist.
LEXIS 87278, at *9. The PDA amended Title VII by extending gender discrimination to include Page 16 discrimination on the basis of pregnancy, childbirth, or related medical conditions. See id. at *(citing 42 U.S.C. § 2000e(k)); see also Piantanida v. Wyman Ctr., Inc., 116 F.3d 340, 341 (8th
Cir. 1997). Currently, the relevant section reads, in part, as follows:
The terms “because of sex” or “on the basis of sex” include, but are not limited to,
because of or on the basis of pregnancy, childbirth, or related medical conditions; and
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.
42 U.S.C. § 2000e(k).
Ames argues that she has direct evidence of gender discrimination. See Pl.’s Resistance
Br. at 14–17. This direct evidence is the following comment that Neel allegedly made to Ames
“at the exact same time she was handing [Ames] a piece of paper and telling her what she needed
to write down in order to resign”: “‘Maybe you should just stay home with your babies.’” See
id. at 15. Neel denies making this comment. See App. to Defs.’ MSJ (“Nationwide’s App.”) at
287, pp. 87:25–88:12. Assuming, arguendo, that Neel did indeed make this comment, the Court
finds that, under Eighth Circuit law, it does not constitute direct evidence of discrimination.
In arguing to the contrary, Ames relies primarily on Sheehan v. Donlen Corp., 173 F.3d
1039 (7th Cir. 1999). See Pl.’s Resistance Br. at 16. In Sheehan, contemporaneously with telling
the plaintiff that she was terminated, her supervisor added: “Hopefully this will give you some
time to spend at home with your children.” See Sheehan, 173 F.3d at 1043. The next day, the
supervisor also told the plaintiff’s co-workers that she had been terminated because “‘we felt that
this would be a good time for [Sheehan] to spend some time with her family.’” Id. The Sheehan
court held that a reasonable jury could conclude that these comments were direct evidence of Page 17 pregnancy discrimination. See id. at 1044.
Sheehan does not automatically compel the conclusion that Ames has mounted direct
evidence of discrimination, however. To determine whether the comment at issue in this case
constitutes direct evidence of sex discrimination, under Eighth Circuit law, the Court must
analyze the speaker, the comment’s content, and the causal connection between the comment and
the adverse employment action. See Wensel v. State Farm Mut. Auto. Ins. Co., 218 F. Supp. 2d
1047, 1059 (N.D. Iowa 2002) (citing Bauer v. Metz Baking Co., 59 F. Supp. 2d 896, 901–(N.D. Iowa 1999)).
a.
The speaker.
To constitute direct evidence of prohibited discrimination, the comment must be made by
someone “involved in the decisionmaking process” and must concern the adverse employment
action. See Wensel, 218 F. Supp. 2d at 1059 (internal citations and quotation marks omitted). It
is not necessary, however, that the speaker be the “final decisionmaker.” See id. At all relevant
times, Neel was the Associate Vice President, who oversaw the Loss Mitigation Department,
where Ames worked. See Nationwide’s Facts ¶ 5; Nationwide’s App. at 54, p. 10:13–25.
Therefore, a reasonable fact-finder could infer that Neel was certainly involved in the alleged
decision to force Ames into resigning from her position.
b.
The content of the comment.
Only comments by decision-makers that are “sufficient for a fact[-]finder to find that a
discriminatory attitude was more likely than not a motivating factor in the employer’s deicion”
would rise to the level of direct evidence of discrimination. See Wensel, 218 F. Supp. 2d at
1059–60 (citing Metz Baking Co., 59 F. Supp. 2d at 904) (internal quotation marks omitted) Page 18 (emphasis in original).
The Court finds that, under Eighth Circuit law, “Maybe you should just stay home with
your babies” does not constitute direct evidence of sex discrimination. Rather, this comment is
based on Ames’s gender-neutral status as a new parent. See Piantanida, 116 F.3d at 342.
“[D]iscrimination based on one’s status as a new parent is not prohibited by the PDA.” Id. at
341. In Piantanida, the court held, in the context of demoting the plaintiff, that the employer’s
statement that “she was being given a position ‘for a new mom to handle’” was not direct
evidence of gender discrimination.29 Id. Similarly, in Wensel, the court held that the defendant’s
statements30 regarding the effect of child-rearing on insurance agents’ productivity were genderDuring her deposition, the Piantanida plaintiff conceded that her demotion was not
related to her pregnancy or maternity. See Piantanida, 116 F.3d at 341. Thus, the district court
analyzed her Title VII claim as a gender discrimination claim “on the basis of her status as a
‘new mother.’” See Piantanida, 927 F. Supp. at 1230 n.1. Although it is axiomatic that only
women can be “new mom[s],” the Eighth Circuit nevertheless held that the comment at issue was
gender-neutral. See Piantanida, 116 F.3d at 342.
Ames, however, argues that “Maybe you should just stay home with your babies” is not a
gender-neutral comment, but rather one that “invoke[s] widely understood stereotypes the
meaning of which is hard to mistake.” See Pl.’s Resistance Br. at 16 (citing Sheehan, 173 F.3d at
1044–45 (internal quotation marks omitted)). The Sheehan court held that the following two
comments constituted direct evidence of gender discrimination because they invoked “widely
understood stereotypes” regarding women’s ability to balance work and child-rearing: (1)
“Hopefully this will give you some time to spend at home with your children”; and (2) “we felt
that this would be a good time for [the plaintiff] to spend some time with her family.” See
Sheehan, 173 F.3d at 1043. Indeed, on the authority of Sheehan, one would be hard-pressed to
argue that either the comment in Piantanida or Neel’s alleged comment in this case do not
invoke such stereotypes. Sheehan, however, is not binding on the Court while Piantanida is.
Accordingly, the Court is compelled to follow Piantanida and hereby holds that “Maybe you
should just stay home with your babies” is a gender-neutral comment that does not support
Ames’s claim for gender discrimination.
There were two statements at issue in Wensel: “(1) that Wensel should wait at least five
years before starting a family; and (2) that pregnancy and child-rearing harm an agent’s ability to
meet his or her productivity goals.” Wensel, 218 F. Supp. 2d at 1060. Page 19 neutral and, therefore, not direct evidence of gender discrimination. See Wensel, 218 F. Supp. 2d
at 1061–62.
In light of Piantanida and Wensel, the Court must conclude that “Maybe you should stay
home with your babies” is, at best, evidence of discrimination on the basis of Ames’s status as a
new parent. Being a parent is not gender-specific as this class also includes men and women
who will never become pregnant. See Piantanida, 116 F.3d at 342. Accordingly, since
discriminating against Ames on account of her status as a parent would not be discrimination
“because of or on the basis of [her] pregnancy, childbirth, or related medical conditions,” the
Court finds that no reasonable fact-finder could conclude that the alleged comment constitutes
direct evidence of gender discrimination.
c.
Causal connection.
Since the Court has determined that no reasonable jury could conclude that the comment
Ames cites is direct evidence of sex discrimination, the Court need not decide whether there was
causation between the alleged comment and Ames’s alleged constructive discharge.
Accordingly, since no reasonable fact-finder could conclude that the comment at issue,
assuming it was uttered by Neel, constitutes direct evidence of sex discrimination, the Court now
turns to the McDonnell Douglas framework to analyze any purported circumstantial evidence of
sex discrimination.
2.
Circumstantial evidence.
Where a plaintiff relies on circumstantial, rather than direct, evidence of intentional
discrimination, the court applies the three-stage burden shifting approach developed by the
Supreme Court in McDonnell-Douglas, and later refined in Texas Dep’t of Cmty. Affairs v. Page 20 Burdine, 450 U.S. 248 (1981); see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-(1993); Dammen v. UniMed Med. Ctr., 236 F.3d 978, 980 (8th Cir. 2001).
Under the McDonnell Douglas framework, the plaintiff bears the initial burden of
establishing a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802. If
the plaintiff establishes a prima facie case, the burden of production shifts at the second stage to
the defendant, who must articulate some legitimate, nondiscriminatory reason for the adverse
employment action. See Burdine, 450 U.S. at 253. If the defendant carries this burden of
production, the presumption raised by the prima facie case is rebutted and “drops from the case.”
Id. at 255 n.10. The burden then shifts back at the third and final stage to the plaintiff, who is
given the opportunity to show that the employer’s proffered reason was merely a pretext for
discrimination. Id. at 253. The ultimate burden remains with the plaintiff at all times to
persuade the trier of fact that the adverse employment action was motivated by intentional
discrimination. Id.
To establish a prima facie case of sex discrimination, Ames must show that: (1) she is a
member of a protected class;31 (2) she met applicable job qualifications; (3) despite her
Defendants dispute that Ames is a member of a protected class. See Nationwide’s Br. at
16–18. Although this Order does not specifically address this prong of Ames’s prima facie case,
the Court finds Defendants’ argument persuasive. Ames appears to assert a protected status on
the basis of her pregnancy and lactation. See Pl.’s Resistance Br. at 17–23. To the extent that
Ames asserts a protected status on the basis of lactation, the Court finds she has failed to show
that she belongs to a protected class because lactation is not pregnancy, childbirth, or a related
medical condition. See supra n. 28; see also 42 U.S.C. § 2000e(k). To the extent that she claims
a protected status on the basis of her pregnancy, the Court notes that Ames has not put forth
sufficient evidence that there was a connection between Defendants’ alleged discriminatory
comments and conduct and Ames’s alleged constructive discharge. See Neesen v. Arona Corp.,
708 F. Supp. 2d 841, 850 (N.D. Iowa 2010) (stating that the PDA does not apply “exclusively to
women who are pregnant or suffer from a pregnancy-related disability” but that the alleged
Page 21 qualifications, she suffered an adverse employment action; and (4) the circumstances permit an
inference of discrimination. See Lewis v. Heartland Inns of Am., LLC, 591 F.3d 1033, 1038 (8th
Cir. 2010). “The burden of establishing a prima facie case of disparate treatment is not onerous.”
Burdine, 450 U.S. at 253. The McDonnell Douglas framework for establishing a prima facie
case of illegal discrimination “was never intended to be rigid, mechanized, or ritualistic.”
Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978). This framework’s central focus is to
determine whether the employer has treated some employees less favorably than others for an
impermissible reason. See id.
The Nationwide Defendants concede, for purposes of summary judgment, that Ames was
qualified for her position as a loss mitigation specialist. See Nationwide’s Br. at 15. They
dispute, however, that Ames suffered an adverse employment action under circumstances
permitting an inference of discrimination.
a.
Adverse employment action.
Constructive discharge is a type of an adverse employment action. See Smith v. Lake
Ozark Fire Dist., No. 10-cv-4100, 2011 U.S. Dist. LEXIS 64722, at *22–23 (W.D. Mo. June 13,
2011) (citing Farcello v. County of Ramsey, 612 F.3d 1069, 1083 (8th Cir. 2010)). “The bar to
relief [in constructive discharge cases], however, is high.” Farcello, 612 F.3d at 1083 (citing
O’Brien v. Dep’t of Agric., 532 F.3d 805, 810–11 (8th Cir. 2008)). To prevail on her
constructive discharge claim, Ames must establish that: (1) a reasonable person would find her
working conditions at Nationwide intolerable; and (2) Nationwide intended to force her to resign
discrimination must be “because of or on the basis of pregnancy”). Page 22 from her employment or could have “reasonably foreseen” that she would resign. See id.
(internal citation omitted). Ames must also establish that she gave the Nationwide Defendants a
reasonable chance to resolve the issues. See West v. Marion Merrell Dow, Inc., 54 F.3d 493, (8th Cir. 1995) (“Part of an employee’s obligation to be reasonable is an obligation not to
assume the worst and not to jump to conclusions too fast . . . . An employee who quits without
giving her employer a reasonable chance to work out a problem is not constructively
discharged.”) (emphasis in original) (internal quotation marks omitted)).
Whether an employee has been constructively discharged is judged by an objective
standard. See Buboltz v. Residential Advantages, Inc., 523 F.3d 864, 869 (8th Cir. 2008) (“[A]
constructive discharge takes place only when a reasonable person would find [the] working
conditions intolerable.”). “Unpleasant [or] unprofessional [work] environment” is insufficient to
establish a constructive discharge. Jones v. Fitzgerald, 285 F.3d 705, 716 (8th Cir. 2002)
(declining to find that the plaintiff had been constructively discharged even though two of her coworkers had called her a “skank,” made harsh comments concerning her cohabitation with a man
to whom she was not married, exhibited hostile attitudes, stuck their tongues out at her,
“whisper[ed] in hushed voices in her presence, abruptly ceas[ed] conversations in her presence,”
and socially isolated her). Work atmosphere that is less than ideal will not, by itself, support a
successful constructive discharge claim because such atmosphere would not compel a reasonable
person to resign. See Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1160 (8th Cir.
1999).
i.
Intolerableness of working conditions. Page 23 At trial, Ames would bear the burden of showing that a reasonable person32 would have
found her working condition intolerable, thus leaving her no choice but to quit. See Wensel, F. Supp. 2d at 1064 (internal citations omitted). In support of her claim of intolerable conditions,
Ames relies on the following factors: (1) she was not given immediate access to a lactation room
on July 19, 2010; (2) at the time she resigned, “it had been over five hours since she had last
expressed milk and [she] was in considerable physical pain”; and (3) during her meeting with
Brinks, he allegedly told her that none of her work had been done during her maternity leave, that
she had to work overtime to get caught up, and that if Ames did not catch up within two weeks,
she would be disciplined. See Pl.’s Resistance Br. at 24–27. Although not specifically set forth
in her resistance brief, in arguing that she was constructively discharged, Ames seems to also rely
on the following allegations: (4) Neel asked her to return to work on July 19, 2010 rather than
the originally provided date of August 2, 2010; (5) Defendants did not provide her with
information regarding Nationwide’s lactation policy; and (6) Neel, Brinks, Baccam, and Hallberg
discriminated against her during and after her pregnancy. See Nationwide’s Br. at 16.
Ames urges that the reasonable person standard applicable to her constructive discharge
claim must account for the following factors: (1) the day she resigned was her first day back to
work following the birth of her second child; (2) “she [was] battling the array of hormones
common in a woman eight weeks post-partum”; (3) she was lactating and her breasts were
engorged “from not being allowed to express milk”; and (4) she was excited to return to work but
also sad to leave her newborn in somebody else’s care. See Pl.’s Resistance Br. at 24. The Court
disagrees with Ames’s contention as adopting it would effectively transform the objective test
into a subjective one. See Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985)
(“[T]he law does not permit an employee’s subjective perceptions to govern a claim of
constructive discharge.”); Angier v. Henderson, No. 00-215, 2001 U.S. Dist. LEXIS 15310, at
*18 n.3 (D. Minn. Aug. 3, 2010) (“[W]hen analyzing the merits of a constructive discharge
claim, the fact[-]finder does not evaluate the workplace from the subjective viewpoint of the
plaintiff.”). Page 24 After analyzing the substance of these factors, the Court finds that they revolve around
four common themes: (1) the alleged discrimination; (2) the revised return-to-work date; (3)
Nationwide’s lactation policy; and (4) the job expectations following Ames’s return from
maternity leave. Even if all of these factors were present, as Ames insists, the Court finds that
they would still be insufficient to induce a reasonable fact-finder to conclude that Ames’s
working conditions were intolerable.
a)
Alleged discrimination.
Ames maintains that Neel, Brinks, Hallberg, and Baccam subjected her to discrimination.
Neel allegedly discriminated against Ames by “eye-rolling,” by telling Ames that she did not
have to go on bed rest during her pregnancy, by stating that she would never have a baby shower
before her baby is born because the baby could die, and because “[t]here was always a negative
innuendo from her to [Ames.]” See Nationwide’s App. at 88:17–89:16. Ames testified that Neel
also commented regarding Ames’s pregnancy as follows: ‘“I never had this many problems
when I was pregnant. All I needed was a pocketful of Tums, and I was good to go.’” Id. at
92:15–17. Furthermore, Neel allegedly “comment[ed] on [Ames’s] size, about [Ames’s]
carrying more than one baby because [she] was so big.” Id. at 92:17–19.
With respect to Brinks, Ames complains that he viewed her pregnancy as an
inconvenience, refused to help her lift a filing cabinet on one occasion, and made certain
comments concerning her maternity leave. See id. at 89:17–90:20. Specifically, at her
deposition, Ames testified as follows regarding Brinks’s alleged comments:
“Oh, yeah, I’m teasing her about only taking a week’s worth of maternity leave.
We’re too busy for her to take off that much work.” And everyone would chime in
with “Oh, yeah,” you know, “she can only be gone for a week. She already took her Page 25 eight weeks with Henry.”
Id. at 90:13–18.
Next, Ames alleges that Hallberg discriminated against her by “providing a letter . . .
stat[ing] there was a three-day waiting period . . . to access a lactation room,” by offering her a
wellness room to pump milk, and by advising Ames that her “milk could not be guaranteed” if
she uses a wellness room. See id. at 87:11–23. Lastly, Ames contends that Baccam
discriminated against her because Baccam had more information about Nationwide’s lactation
policy, but did not share her knowledge with Ames and did not advise Ames to review the
lactation policy on her own. See id. at 93:14–23.
The Court finds that a reasonable fact-finder would conclude that, objectively, these
instances of alleged discrimination would not cause a reasonable person in Ames’s position to
believe that she had no choice but to resign. Applying the reasonable person standard, the Court
concludes that, at most, the comments and conduct at issue created a less than ideal and,
arguably, unpleasant work environment for Ames. As held by the Jones and Breeding courts,
however, this is insufficient to cause a reasonable person to believe that she has no choice but to
resign. Furthermore, the Court notes that the facts of the present case paint a picture far less
reprehensible than the one in Jones, where the Court declined to find that the plaintiff had been
constructively discharged.
Although a reasonable fact-finder would conclude that Neel’s and Brinks’s comments
were insufficient for a successful constructive discharge claim, the Court believes that these
comments at least allow Ames to raise a colorable constructive discharge claim. The same
cannot be said for Hallberg’s and Baccam’s alleged discriminatory conduct. Ames complains Page 26 that Hallberg discriminated against her by providing her with a letter stating that there was a
three-day waiting period before obtaining access to a lactation room and by offering Ames use of
a wellness room in the meantime. What Ames finds objectionable and discriminatory in
Baccam’s conduct is her failure to voluntarily and on her own initiative inform Ames of the
contents of Nationwide’s lactation policy. A reasonable fact-finder would not conclude that this
constitutes culpable conduct. Therefore, the Court holds, as a matter of law, that neither Hallberg
nor Baccam contributed to the alleged intolerable working conditions.
b)
Revised return-to-work date.
Ames contends that having to report back to work two weeks prior to the originally
scheduled return date of August 2, 2010 created or at least contributed to creating intolerable
work conditions. The Court disagrees. It is undisputed that Ames was originally told that she
could remain on maternity leave33 until August 2, 2010. See Nationwide’s App. at 204. On June
16, 2010, however, Neel informed her in a telephone call that the August 2, 2010 date had been
incorrectly calculated.34 See id. Before ending the phone call, Ames and Neel agreed that Ames
would return to work on July 19, 2010. See id. Notably, Ames acknowledged that returning to
work on July 19, 2010 would be “fine.”35 See id.
The Court refers to the leave provided to new mothers by the Family Medical Leave Act
(“FMLA”) as maternity leave.
Neel explained that the maternity leave authorized by the FMLA is calculated on a rolling
twelve-month basis. See Nationwide’s App. at 204. Ames was not entitled to the full FMLA
leave following the birth of her second child because she had already used some FMLA leave
during the preceding twelve months due to the birth of her first child. See id.
The Court notes that Ames agreed to return to work on July 19, 2010 before Neel stated
that remaining on maternity leave until August 2, 2010 would “cause[] red flags . . . and
problems like that.” See Nationwide’s App. at 204. Page 27 There is no doubt that reporting back to work sooner than expected came as a shock to
Ames. See id. The Nationwide Defendants, however, had a legitimate reason for requiring
Ames to do so—the length of her maternity leave had been miscalculated. See id. Defendants
did not deprive Ames of her rights under the Family Medical Leave Act (the “FMLA”). To the
contrary, they extended Ames’s maternity leave by one week. See id. In light of this extension,
the fact that Defendants did not prejudice Ames’s rights under the FMLA, and the fact that Ames
had more than thirty days to prepare for returning to work on July 19, 2010, the Court concludes
that, in the eyes of a reasonable fact-finder, the June 16, 2010 telephone call would not lead a
reasonable person in Ames’s position to believe that she had no choice but to resign.
c)
Lactation policy and lactation room access.
It is undisputed that Ames could not have been given access to a lactation room on July
19, 2010 because she had not filled out the required paperwork beforehand. See supra n.11. It is
also undisputed, however, that Ames was able to use one of the wellness rooms to pump milk
that day.36 See Nationwide’s App. at 73:4–8. Even if Ames did not consider the wellness rooms
a satisfactory accommodation, using a wellness room was only a temporary solution until she
was granted access to a lactation room. See Ames’s App. at 7, p. 81:16–19 (“[T]here was a
three-day waiting period for [Ames] to access a lactation room.”).
Furthermore, although Ames refuses to accept any blame for not familiarizing herself
with Nationwide’s lactation policy, the fact remains that the policy was readily available to her.
Compare Nationwide’s App. at 87, p. 93:11–23 (Ames stating that Baccam discriminated against
Prior to creating the three lactation rooms, nursing mothers used the wellness rooms to
express milk. See Ames’s App. at 31:1–4.
Page 28 her by not explaining Nationwide’s lactation program) with Nationwide’s App. at 81:5–14;
84:14–85:16; 93:14–23 (Ames admitting that Nationwide’s lactation policy was available on the
company intranet, that she could have obtained information regarding the lactation policy during
one of the quarterly maternity meetings but never attended any of those meetings because of her
workload, and that she could have asked Baccam how to arrange for a lactation room access
before returning to work). Even if Ames’s workload was indeed so heavy that she could not
attend any of the quarterly maternity meetings, she certainly could have reviewed Nationwide’s
lactation policy at some time during her pregnancy or during her maternity leave following the
birth of her second child.37 Similarly, prior to returning to work, Ames could have asked Baccam
any questions concerning Nationwide’s lactation policy, including how to obtain access to a
lactation room, but did not do so.
A reasonable person in Ames’s position would have done what is necessary to familiarize
herself with Nationwide’s lactation policy before returning to work. After all, going back to
work did not come as a surprise to Ames; she knew on June 16, 2010 that she had to report back
to work on July 19, 2010. Thus, she had over a month to prepare. The Court is not insensitive to
the burdens and stresses associated with parenthood, particularly those experienced by new
mothers. Being under stress, however, does not excuse Ames from doing what any reasonable
person in her position would have done. Therefore, the Court concludes that no reasonable factfinder would determine that the unavailability of a lactation room on July 19, 2010 would lead a
reasonable employee in Ames’s position to believe that her only option was to resign. See
The Court notes that Nationwide’s lactation policy is approximately three pages long.
See Nationwide’s App. at 148, 150–51. Page 29 Jerkovich v. Freson-Madera of Am. Red Cross, No. CV-F-04-5811, 2005 U.S. Dist. LEXIS
44827, at *52 (E.D. Cal. Aug. 23, 2005) (“Plaintiff was provided a secure and private place for
her lactation needs[, albeit an unsanitary computer room]; even if less than ideal, this
accommodation would not prompt a reasonable employee to believe that her only option was to
quit.”).
d)
Job expectations.
Similarly, regardless of the contents of the July 19, 2010 conversation between Ames and
Brinks, no reasonable jury would find that a reasonable employee in Ames’s position would
believe that her only option was to resign. Ames alleges that, during that meeting, Brinks told
her that none of her work had been done while she was on maternity leave,38 that she had two
weeks to catch up, and that she had to work overtime to do so. See Ames’s App. at 91 ¶¶ 11–12.
Also, Brinks allegedly told Ames that she would be formally disciplined unless she was
completely caught up on her work in two week’s time. See id. ¶ 12. Even assuming that Brinks
indeed made these statements, the Court determines that no reasonable jury would conclude that
Ames asserts that Brinks told her that none of her work had been done while she was on
maternity leave and that she had two weeks to catch up on all the work that had been piling up.
See Ames’s App. at 43. Brinks disputes that none of Ames’s work had been done. See Ames’s
App. at 27, pp. 79:22–80:10. Ames’s assertion is also contradicted by Nationwide’s reports
showing that, as of July 19, 2010, Ames’s work queue was in a better condition than when she
took her maternity leave. See Nationwide’s App. at 213–58. The parties’ disagreement on this
issue does not create a genuine dispute. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986) (stating that a “metaphysical doubt” does not create a genuine dispute);
see also Middleton v. Am. Standard Cos., No. 06-2205, 2007 U.S. Dist. LEXIS 69733, at *(W.D. Ark. Sept. 20, 2007) (“When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a motion for summary judgment.”).
Page 30 these job expectations created intolerable working conditions, such that a reasonable person in
Ames’s position would believe that she had no option but to quit. Completing work assignments
in a timely manner is not an unique job requirement; rather, it is central to the proper functioning
of any business, including Nationwide’s. See Nationwide’s App. at 48, p. 15:11–19. Indeed,
timely completion of the work tasks was a key characteristic of the position of loss mitigation
specialist, and was “a high priority” within the entire Loss Mitigation Department. See id. at 48,
p. 15:11–19. Thus, the mere expectation that Ames must timely perform her job duties, without
more, cannot convince a reasonable fact-finder that Ames endured intolerable work conditions
forcing her to resign.
ii.
Foreseeability of Ames’s resignation.
Ames has not put forth any evidence, other than her self-serving and unsupported
assertion, that the Nationwide Defendants intended for her to resign on July 19, 2010. See Pl.’s
Resistance Br. at 27 (“[The Nationwide Defendants intended for [Ames] to resign on July 19,
2010.” (emphasis in original)). Accordingly, on this record, the Court must conclude that no
reasonable fact-finder would determine that Defendants intended for Ames to quit. Thus, the
relevant inquiry becomes whether it was reasonably foreseeable to Defendants that Ames would
resign. The Court must answer this question in the negative.
No reasonable jury would agree that it was reasonably foreseeable to Defendants that the
alleged discriminatory comments and conduct of Neel, Brinks, Hallberg, and Baccam would
cause Ames to resign. As articulated in § III.B.2.a.i.a), the Court has determined that no
reasonable jury would find Hallberg’s and Baccam’s conduct even remotely objectionable.
Furthermore, for the reasons stated in that section, the Court finds that, although a reasonable Page 31 fact-finder may conclude that Neel’s and Brinks’s comments were distasteful and inappropriate,
it was nevertheless not reasonably foreseeable that those comments would force Ames to resign.
Similarly, no reasonable jury would find it reasonably foreseeable that changing Ames’s
return-to-work date would promote her ultimate resignation. Defendants asked Ames to report
back to work earlier than expected because they had miscalculated the length of the maternity
leave to which she was entitled. Therefore, all that they expected of Ames was to comply with
the applicable FMLA provisions.
With respect to Ames’s assertion that she was not given access to a lactation room, the
Court notes that she had not filled out the required paperwork prior to reporting back to work on
July 19, 2010. Her failure to do so is the sole reason for not getting access to a lactation room on
that day. By not requesting such access, Ames failed to notify the Nationwide Defendants of her
intentions to continue breast-feeding past the expiration of her maternity leave. Accordingly, it
was not reasonably foreseeable that Ames would resign simply because she could not have
access to a lactation room on July 19, 2010, or because she had to wait three days before getting
access to such a room. The Court also finds that it was similarly not reasonably foreseeable that
Ames would resign because she had to use a wellness room to express milk until obtaining
access to a lactation room. Finally, for the reasons articulated in § III.B.2.a.i.d), a reasonable jury
would not find that it was reasonably foreseeable that Ames would resign because of the
expectation that she needed to maintain her work queue current.
iii.
Opportunity to respond.
To prevail on her constructive discharge claim, Ames must show that she refrained from
“assum[ing] the worst” and provided Defendants with an opportunity to address her grievances. Page 32 See West, 54 F.3d at 498; Coffman v. Tracker Marine, L.P., 141 F.3d 1241, 1247 (8th Cir. 1998).
Ames argues, and the Court will assume for purposes of this Order, that she did so when she
“tried to discuss her feelings of despair with Ms. Neel and explore any options that might be
available to her to accommodate her need to provide breast milk for her son.” See Am. Compl. ¶
45; see also Pl.’s Resistance Br. at 29. It is undisputed that Ames did not lodge a complaint with
Nationwide’s Human Resources department, the Office of Ethics, or the Office of Associate
Relations.39 See Nationwide’s App. at 96:2–18. For this reason, the Court concludes, as a matter
of law, that Ames did not give Defendants an opportunity to respond to her grievances.
Sowell v. Alumina Ceramics, Inc. presents a similar to this case’s fact pattern. See F.3d 678 (8th Cir. 2001). The plaintiff in Sowell, who had recently given birth to her child,
complained to her supervisor regarding the newly-instituted pager policy but “failed to avail
herself of the channels of communication provided by [the employer] to deal with such
complaints.” See Sowell, 251 F.3d at 385–86 (internal citation omitted). The Eighth Circuit
affirmed the district court’s grant of summary judgment for the employer, in part, due to Sowell’s
failure to utilize the grievance process established by the employer. See id.
Nationwide’s Compliance Statement reads as follows:
If you have reason to believe that Nationwide is not in compliance with the law,
contact your local HR professional, the Office of Ethics, or the Office of Associate
Relations to report the circumstances immediately. All complaints will be
investigated and handled in as confidential a manner as possible. You are assured
that there will be no retaliation against you for participating in an investigation or
making a complaint with the reasonable belief that non-compliance with the law has
occurred.
Nationwide’s App. at 105. Ames was undoubtedly aware of this policy. See id. at 195. Page 33 Using similar reasoning, in Coffman, the Eighth Circuit reversed the jury’s finding that
the plaintiff had been constructively discharged. See Coffman, 141 F.3d at 1247–48. In
concluding that there was insufficient evidence to support such a finding, the court took into
account the fact that the plaintiff had available avenues for redress within the company but failed
to use them. See id. The court explained that the rationale behind requiring an employee to
attempt to resolve her grievances internally is that “society and the policies underlying Title VII
will be best served if, wherever possible, unlawful discrimination is attacked within the context
of existing employment relationships.” Id. at 1247 (internal citations and quotation marks
omitted).
The Court sees no reason to depart from Sowell’s and Coffman’s analyses. To the
contrary, the Court believes that Sowell and Coffman control the present case. It is undisputed
that Ames knew about Nationwide’s internal processes allowing any employee to launch a
complaint with the Human Resources department, the Office of Ethics, or the Office of Associate
Relations. It is also undisputed that she did not do so. Rather, similar to the Sowell plaintiff,
Ames only complained to Neel about not having immediate access to a lactation room, but did
not avail herself of the established channels of communication within Nationwide. Dissatisfied
with Neel’s alleged indifference, Ames felt that she had no alternative but to resign.
Relying on Sowell and Coffman, the Court holds that Ames’s claim of constructive
discharge must fail. Ames did not follow known internal grievance procedures to lodge her
complaint. Indeed, she did not even attempt to do so. Instead, she assumed the worst and
surmised that her only reasonable option was to tender her resignation. Under existing law,
Ames cannot prevail on her constructive discharge claim. Therefore, on this record, no Page 34 reasonable jury could conclude that Ames has presented sufficient evidence to establish the
existence of a genuine issue of material fact precluding summary judgment for Defendants on her
constructive discharge claim.
b.
Inference of discrimination.
Ames argues that “a reasonable jury could find that the circumstances surrounding
[Ames’s] constructive discharge permit an inference of discrimination.” Pl.’s Resistance Br. at
30. In support, Ames asserts that Neel’s and Brinks’s “barrage of comments . . . about her
pregnancy and upcoming maternity leave” made it clear to her that her pregnancy was viewed as
an inconvenience. Id. “[F]orcing [Ames] to come back to work earlier than she had expected”
was yet another attempt “to get her to quit.” Id. When Ames did not resign, Defendants made
sure that she would “resign the same morning she returned from maternity leave.” Id. (emphasis
in original). For reasons that follow, the Court finds that Ames has not established the existence
of circumstances surrounding her alleged constructive discharge, such that, when considered
“[T]he most straight-forward manner to give rise to an inference of sex discrimination” is
for Ames to compare her treatment to that of other similarly-situated employees outside the
protected class, or “comparators.” See Lewis v. Heartland Inns of Am., L.L.C., 585 F. Supp. 2d
1046, 1064 (S.D. Iowa 2008), rev’d on other grounds, 591 F.3d 1033 (8th Cir. 2010). In this
case, such “comparators” would be men with children, not women without children. See
Johnston v. U.S. Bank Nat’l Ass’n, No. 08-CV-0296, 2009 U.S. Dist. LEXIS 79125, at *31, n.13 (D. Minn. Sept. 2, 2009). Since Ames has presented no evidence showing that Defendants
treated her comparators more favorably, “the Court will appl[y] the slightly more expansive
standard which allows [Ames] to meet the fourth prima facie element if she demonstrates that the
[constructive] discharge occurred under circumstances giving rise to an inference of
discrimination.” See Lewis, 585 F. Supp. 2d at 1063.
Page 35 together or in isolation, they warrant an inference of discrimination.
i.
Alleged discrimination.
The Court has already detailed and will not recount Defendants’ alleged discriminatory
comments and conduct. See supra § III.B.2.a.i.a. Rather, the Court finds it helpful to compare
the facts of the present case to previous cases where the facts were found sufficient to support a
discrimination claim.
In Walsh v. Nat’l Computer Sys., Inc., 332 F.3d 1150, 1160 (8th Cir. 2003), the plaintiff
sued her employer alleging gender discrimination on the basis of pregnancy. She claimed that
she had been discriminated against “not because she was a new parent, but because she [was] a
woman who had been pregnant [and] had taken a maternity leave.”41 Id. In concluding that there
was ample support for the jury’s finding that the plaintiff had been discriminated against on the
basis of her pregnancy, the Walsh court relied primarily on the following factors: (1) the plaintiff
was required to provide advance notice and documentation of her doctor’s appointments while
she was pregnant, and her co-workers did not have to do that, see id.; (2) the plaintiff was denied
the opportunity to change her schedule by leaving at 4:30 p.m., instead of 5:00 p.m., so that she
could pick up her son from daycare, even though some of her co-workers left work at 3:45 p.m.,
and her supervisor told her that she should probably look for another job, see id. at 1155; (3) the
plaintiff’s supervisor placed signs saying “Out—Sick Child” outside the plaintiff’s cubicle
Walsh also claimed that she had been discriminated against because she “might become
pregnant again.” See Walsh, 332 F.3d at 1160 (citing Krauel v. Iowa Methodist Med. Ctr., F.3d 674, 680 (8th Cir. 1996) (holding that potential pregnancy was a sex-related medical
condition)). Ames has not presented any evidence that she had been discriminated against
because of her potential to become pregnant again. Accordingly, the Court will not examine this
issue.
Page 36 whenever she was caring for her sick son when such signs were not placed outside absent coworkers’ cubicles, see id.; and (4) the plaintiff was required to make up “every minute” that she
was absent due to doctor’s appointments for herself or her son when no other employees were
required to do so, see id.
Although the Court does not condone the discriminatory treatment that the Walsh plaintiff
had to endure, it did not rise to the level of the disparate treatment accorded the plaintiff in
Snyder v. Yellow Transportation, Inc., 321 F. Supp. 2d 1127 (E.D. Mo. 2004). While on
maternity leave, Snyder’s employment as a sales representative was terminated as a part of an
announced reduction in force. See id. The court denied the employer’s summary judgment
motion, holding that there was sufficient evidence in the record to support a finding that the
plaintiff’s “sex and recent pregnancy were factors considered in the decision to terminate her
employment.” Id. For instance, while she was on maternity leave, her employer permanently
realigned the territory lines assigning Snyder to an undesirable territory. See id. Furthermore,
one of Snyder’s managers had made derogatory remarks about female sales representatives
calling them “a pain in the ass.” See id. Another manager had stated that male account managers
were more capable than their female counterparts because women took time off to care for
children. See id. at 1132. These comments, however, were not the most egregious conduct that
Snyder’s superiors engaged in. Following her discharge, one of her former managers asked a
colleague of hers to fabricate a letter “for her file” outlining alleged customer complaints
regarding Snyder’s job performance. See Snyder, 321 F. Supp. 2d at 1132.
A “milder” case of pregnancy discrimination is Vosdingh v. Qwest Dex, Inc., No. 034884, 2005 U.S. Dist. LEXIS 6866 (D. Minn. Apr. 21, 2005). Although the comments directed Page 37 at the plaintiff were not as harsh as those in Snyder, the court found that they were nevertheless
sufficient to give rise to an inference of discrimination. See Vosdingh, 2005 U.S. Dist. LEXIS
6866, at *60. When Nicholls, one of the Vosdingh plaintiffs, informed her manager that she was
pregnant for the second time, the manager asked her what she was going to do about her job. See
id. at *59. The manager also added that it was hard to come back to work after having a child
and that it was hard to keep “this job with two kids.” See id. When Vosdingh returned to work
and told her manager about her need to express milk, he made derogatory comments concerning
her decision to come back to work and to continue breast-feeding. See id. The manager also told
Vosdingh that he knew it was hard for her to come back to work and asked if there was any way
she could stay home. See id.
The Court finds that Dams v. City of Waverly, No. C04-2077, 2006 U.S. Dist. LEXIS
19237 (N.D. Iowa Mar. 2, 2006) is also useful in deciding whether Ames has presented evidence
sufficient to give rise to an inference of discrimination. After Dams became pregnant, she and
her supervisor, Buls, had several discussions regarding the length of her upcoming FMLA leave.
See Dams, 2006 U.S. Dist. LEXIS 19237, at *2. Buls took the position that eight, rather than ten,
weeks of maternity leave would be more appropriate. See id. at *2–3. The court held that the
inquiries as to the length of the leave and the statement that eight weeks of leave would be
preferable were “perfectly appropriate.” See id. at *14. Buls’s “attempt[] to condition granting
Dams’[s] unrelated vacation time on [her] taking only eight weeks of leave” was, however,
inappropriate and illegal. See id.
The inquiry into whether a plaintiff has presented evidence sufficient to give rise to an
inference of discrimination is case-specific. See McDonnell Douglas, 411 U.S. at 802 n.13 (“The Page 38 facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof
required from respondent is not necessarily applicable in every respect to differing factual
situations.”). Thus, there are no particular comments or conduct that have to be present in a
given case to permit an inference of discrimination. See id. With this in mind, the Court views
Walsh’s, Snyder’s, Vosdingh’s, and Dams’s analyses as relevant and instructive, but in no way
dispositive to the present case. After analyzing the record, the Court does not agree that the
evidence in this case permits an inference of sex discrimination.
Assuming, arguendo, that Neel and Brinks made the comments at issue, the Court must
still conclude that they are insufficient to warrant an inference of discrimination.42 Unlike the
employer’s statements and actions in Walsh, Snyder, Vosdingh, and Dams, none of the comments
or conduct at issue here indicates Defendants’ negative attitude towards pregnancy or the
likelihood that Ames would suffer an adverse employment action as a result of her pregnancy or
maternity leave. Viewing the alleged discriminatory comments and conduct in the light most
favorable to Ames, the Court finds that, at most, they are marginally inappropriate. They are not,
however, indicative of Nationwide’s negative attitude towards pregnancy, the feminine gender,
The Court notes that all of the comments at issue occurred prior to Ames taking her
maternity leave, which began on April 12, 2010. See Nationwide’s App. at 88:17–93:23. Some
of them were made when Ames was pregnant with her first child in 2008–09. See id. at
91:19–92:6. Considering the lack of temporal proximity between these comments and the
alleged constructive discharge, the Court is less inclined to find a connection between the
comments and the adverse employment action. Cf. Quick v. Wal-Mart Stores, Inc., 441 F.3d 606,
610 (8th Cir. 2006) (“[W]e have been hesitant to find pretext or discrimination on temporal
proximity alone.” (internal citation and quotation marks omitted)); Snelson v. Mo. Transp.
Comm’n, No. 06-4073, 2009 U.S. Dist. LEXIS 14456, at *13–14 (W.D. Mo. Feb. 24, 2009)
(“[C]lose temporal proximity between an employer’s discovery of a protected characteristic and
an adverse employment action may, on rare occasions, suffice to create an inference of
discrimination.” (internal citation and quotation marks omitted)). Page 39 or maternity leave.
Notably, unlike in Dams, here there is no evidence that Nationwide attempted to
discourage Ames from taking the entire FMLA leave to which she was entitled. To the contrary,
she was actually given an extra week of maternity leave following the birth of her second child.
It is also undisputed that Ames did not experience a disparate treatment resembling, even
remotely, the one that the Walsh plaintiff had to endure. Unlike the Snyder plaintiff, Nationwide
did not change the essential responsibilities of Ames’s position while she was on maternity leave
or upon her return to work. Most importantly, unlike the Vosdingh plaintiffs, Ames did not have
to put up with any derogatory comments on account of her pregnancy, maternity leave, or desire
to continue breast-feeding. Indeed, the evidence suggests that Defendants were quite
accommodating and understanding of Ames’s decisions to take all the FMLA leave to which she
was entitled and to continue breast-feeding after coming back to work. Furthermore, Defendants
did not, at any point, suggest or imply that Ames’s pregnancies, maternity leave, or desire to
continue breast-feeding somehow jeopardized her continued employment.
As with Neel’s and Brinks’s comments and conduct, the Court does not agree that the
remaining instances of alleged discrimination by Hallberg and Baccam are sufficient to give rise
to an inference of discrimination. Baccam’s failure to advise Ames on the specifics of
Nationwide’s lactation policy does not constitute discriminatory conduct. Indeed, Ames has not
presented any evidence that she informed Defendants of her plans to continue breast-feeding
following her return to work. At the same time, Ames admits that the lactation policy was
readily available to her on the company intranet and that she could have, but did not, ask Baccam
any questions regarding the policy. In light of these circumstances, the Court cannot conclude Page 40 that Baccam engaged in any discriminatory behavior against Ames.
Similarly, the Court must conclude that Hallberg did not discriminate against Ames
either. Providing a letter explaining the procedure for obtaining access to a lactation room is not
an act of discrimination. When, on July 19, 2010, Ames found out that she would not be able to
use a lactation room on that day, Hallberg offered her use of one of the wellness rooms instead.
Hallberg also sent an email requesting that Ames’s request for access to a lactation room be
expedited. See Nationwide’s App. at 152. The Court cannot agree that these actions exhibit any
of the inherent characteristics of discriminatory behavior. To the contrary, Hallberg’s actions
portray her as someone who was exceptionally sensitive to Ames’s recent childbirth and breastfeeding concerns.
ii.
Revised return-to-work date.
Based on the analysis in § III.B.2.a.i.b, the Court concludes that changing the end date of
Ames’s maternity leave does not give rise to an inference of discrimination. Although asking
Ames to report back to work approximately two weeks earlier than she had expected came as a
surprise, it did not prejudice her rights under the FMLA. To the contrary, Defendants allowed
Ames to take an extra week of maternity leave over and above what she was entitled to under the
law. This is not the type of conduct giving rise to an inference of discrimination.
iii.
Events of July 19, 2010.
The Court hereby incorporates by reference the analysis in §§ III.B.2.a.i.c and
III.B.2.a.i.d. Ames asserts that, on July 19, 2010, two factors prompted her to believe that she
had no choice but to resign—not being able to use a lactation room to express milk and her
conversation with Brinks concerning the status of her work. With respect to the lactation room, Page 41 the Court notes that Ames was denied access solely due to her failure to fill out the required
paperwork. While waiting for this paperwork to be processed, Ames was offered a wellness
room where she could express breast milk. Neither the lack of lactation room access nor the
need to use a wellness room to express milk belongs to the category of circumstances warranting
an inference of discrimination, however. For that matter, neither does the July 19, conversation between Brinks and Ames.
During that meeting, Brinks communicated Nationwide’s expectation that Ames must not
fall behind on her work tasks and could use overtime if she needed it. The Court cannot agree
that these were unreasonable expectations; to the contrary, timely completion of the work tasks
was central to the loss mitigation specialist position. See Nationwide’s App. at 48, p. 15:11–19.
When asked about the importance of “stay[ing] on top of the work” in the Loss Mitigation
Department, Brinks testified as follows:
Q.
A.
Q.
A.
Q.
A.
And is that because that was a busy department?
Yes.
And one where it was important to stay on top of the work?
Yes.
Would you say that was probably a No. 1 priority for that department?
It was a high priority.
Id. Furthermore, the record establishes that Ames was not treated differently than her co-workers
in the Loss Mitigation Department. See id. “It was a high priority [that everyone] stay[ed] on top
of the work.” Id. at 48, p. 15:14–19. Even if Nationwide’s expectations regarding Ames’s
timely completion of work tasks were unrealistic in light of her recent childbirth and three-month
maternity leave, that alone does not give rise to an inference of discrimination. See Standridge v.
Union Pac. R.R. Co., 479 F.3d 936, 944 (8th Cir. 2007) (“While an employer must treat its Page 42 employees similarly, it does not have to treat employees in a protected class more favorably than
other employees.”).
IV. CONCLUSION
For the reasons discussed above, Defendants’ MSJ (Clerk’s No. 46) is hereby
GRANTED. In light of this ruling, the following motions are DENIED AS MOOT: (1) Motion
for Summary Judgment (Clerk’s No. 44); (2) Motion to Exclude Testimony of Plaintiff’s Experts
and Request for Oral Argument (Clerk’s No. 31); (3) Motion to Strike (Clerk’s No. 72); (4)
Motion to Strike Section II of Defendants’ Response to Plaintiff’s Statement of Additional
Material Facts (Clerk’s No. 75); (5) Motion to Continue the Trial and Request for Expedited
Ruling (Clerk’s No. 85); and (6) Plaintiff’s Motion in Limine (Clerk’s No. 87). Additionally, for
the reasons articulated in n.2 above, the Court DENIES Plaintiff’s Motion for Hearing/Oral
Argument (Clerk’s No. 69).
IT IS SO ORDERED.
Dated this ___16th___ day of October, 2012.
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION
ANGELA AMES,
Plaintiff,
v.
NATIONWIDE MUTUAL INSURANCE
CO., NATIONWIDE ADVANTAGE
MORTGAGE CO., and KARLA NEEL,
Defendants.
*
*
*
*
*
*
*
*
*
*
*
*
*
4:11-cv-00359 RP-RAW
MEMORANDUM OPINION
AND ORDER
Before the Court is Nationwide Mutual Insurance Company’s, Nationwide Advantage
Mortgage Company’s (collectively “Nationwide”), and Karla Neel’s (“Neel”) (collectively the
“Nationwide Defendants” or “Defendants”) Amended Motion for Summary Judgement and
Request for Oral Argument (“MSJ”), filed July 24, 2012.1 Clerk’s No. 46. On August 20, 2012,
Plaintiff Angela Ames (“Ames”) timely resisted the Motion. Clerk’s No. 62. Defendants replied
on August 30, 2012. Clerk’s No. 70. This matter is fully submitted.2
I. FACTUAL BACKGROUND
Ames’s at-will employment as a loss mitigation specialist at Nationwide lasted from
On July 23, 2012, Defendants filed an MSJ that did not request oral argument. See
Clerk’s No. 44. The next day, on July 24, 2012, Defendants amended the Motion by including
such a request. See Clerk’s No. 46.
1
On August 30, 2012, Ames requested an oral argument on the pending MSJ. Clerk’s No.
69. The Court, however, does not believe that an oral argument would substantially aid it in
ruling on the motion. See LR 7(c). Accordingly, Ames’s Motion for Hearing/Oral Argument
(Clerk’s No. 69) is denied.
2
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October 20083 to July 19, 2010. Nationwide’s Statement of Undisputed Facts in Supp. of MSJ
(“Nationwide’s Facts”) ¶¶ 1–3, 43; Pl.’s Resp. to Nationwide’s Facts (“Ames’s Facts”) ¶¶ 1–4.
Following the birth of her first child on May 2, 2009, Ames took eight weeks of maternity leave.
See Nationwide’s Facts ¶ 52; Ames’s Facts ¶ 52; Ames’s Statement of Add’l Material Facts
(“Ames’s Add’l Facts”) ¶ 2. In October 2009, Ames found out that she was pregnant again. See
Ames’s Add’l Facts ¶ 3. Due to pregnancy complications, she began her maternity leave on
April 11, 2010 prior to giving birth to her second child. See id. ¶¶ 5–6. Initially, Nationwide
advised Ames that her maternity leave would expire on August 2, 2010.4 See id. ¶¶ 16–17;
Nationwide’s Facts ¶ 52. In a June 16, 20105 telephone call between Neel6 and Ames, however,
Neel advised Ames that there had been a mistake in calculating her maternity leave and that
Ames’s leave would expire on July 12, 2010 rather than on August 2, 2010.7 See Ames’s Add’l
The parties report different employment start dates. Ames states that she began work at
Nationwide on or about October 1, 2008. See Pl.’s Resp. to Nationwide’s Facts (“Ames’s
Facts”) ¶ 1. Nationwide, on the other hand, states that Ames’s employment began on October
20, 2008. See Nationwide’s Statement of Undisputed Facts in Supp. of MSJ ¶ 1.
3
Due to what the Court perceives to be a typographical error, Nationwide reports that
Ames’s maternity leave was to end on August 2, 2012. See Nationwide’s Facts ¶ 52.
4
In her Complaint, Ames alleges that the telephone call took place on June 21, 2010. See
Am. Compl. ¶ 20.
5
At all relevant times, Neel was an Associate Vice President, who was in charge of
overseeing the Loss Mitigation Department. See Nationwide’s Facts ¶ 5; App. to Nationwide’s
MSJ (“Nationwide’s App.”) at 54, p. 10:13–25.
6
The parties disagree as to whether Nationwide allowed Ames to return to work on August
2, 2010. Compare Ames’s Statement of Add’l Material Facts ¶ 20 (stating that, during the June
16, 2010 telephone call, “Neel[] insinuat[ed] that [Ames] would be disciplined (if not fired) if
she did not return to work on July 19, 2010”) with Nationwide’s Facts ¶ 53 (stating that
Nationwide allowed Ames to take until August 2, 2010 before returning to work).
7
2
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Facts ¶ 16; Nationwide’s Facts ¶¶ 51–52; App. to Nationwide’s MSJ (“Nationwide’s App.”) at
204. As agreed during this telephone call, Ames returned to work on July 19, 2010 at
approximately 10:00 a.m.8 See Ames’s Add’l Facts ¶ 22. She resigned from her position three
hours later. See Nationwide’s Facts ¶¶ 43, 70. The parties disagree on what exactly transpired
over those three hours.
Shortly after reporting to work on July 19, 2010, Ames needed to express milk.9 See Pl.’s
App. in Supp. of Her Resistance to Nationwide’s MSJ (“Ames’s App.”) at 4–5. When Ames told
Sara Sagers, presently Sara Hallberg (“Hallberg”),10 that she had to express milk immediately,
Hallberg responded that Ames had to fill out paperwork11 before being able to use one of the
Ames reported to work around 10:00 a.m. because she had to take her newborn son to a
routine doctor’s appointment. See Ames’s Add’l Facts ¶ 22.
8
Ames states that, at the time, she was nursing her baby every three hours. See Pl.’s App.
in Supp. of Her Resistance to Nationwide’s MSJ at 4, p. 68:21–5, p. 69:2. On July 19, 2010, her
first day following her maternity leave, Ames expressed milk around 6:30 a.m. See id. at 4, p.
68:16–20. Therefore, more than three hours had gone by when Ames reported to work.
9
10
Hallberg was employed by Nationwide as a nurse. See Ames’s App. at 30:9–11.
There was a three-day waiting period before the paperwork could be processed and Ames
given access to a lactation room. See Ames’s App. at 7, p. 81:16–19; Nationwide’s App. at
150–51. Ames claims that no one had ever advised her of this waiting period. See Ames’s App.
at 7, p. 82:20–24. Nationwide disagrees and points out that its lactation policy was available to
Ames online, that Ames did not ask any questions regarding the lactation policy, and that she did
not attend any of the quarterly maternity meetings although she knew about them. See App.
Nationwide’s App. at 84:14–85:16; 93:14–23; 81:5–14.
11
When, on July 19, 2010, it became clear that Ames had not filled out the paperwork
requesting access to a lactation room, Hallberg sent two emails. The first one was addressed to
Ames and contained Nationwide’s lactation policy, which consists of approximately three pages.
See Nationwide’s App. at 148–51. With her second email, Hallberg requested expedited
processing of Ames’s application for access to a lactation room. See id. at 152.
3
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lactation rooms.12 See id. at 7, p. 82:13–19. To accommodate Ames’s need to immediately
express milk, Hallberg suggested that she use one of the wellness rooms13 or Hallberg’s office.14
See Nationwide’s App. at 72:5–21; 73:4–8. Ames chose a wellness room that was going to
become available shortly.15 See id. at 73:21–25; Ames’s App. at 91 ¶ 9.
While waiting on the wellness room, Ames met with Brian Brinks16 (“Brinks”) “to catch
up on the status of [her] work.” Ames’s App. at 91 ¶ 11. Ames asserts that Brinks had promised
to take over her work while she was on maternity leave, but that nothing had been done. See id.
at 43. Ames also claims that, during the meeting, Brinks told her that she had two weeks to catch
up, that she had to work overtime to accomplish that, and that if she failed to catch up within two
weeks, she would be disciplined. See id.; see also id. at 91 ¶ 12; Nationwide’s App. at 52, pp.
80:15–82:25. Nationwide agrees that such a meeting took place, but disagrees with Ames’s
account of the conversation between her and Brinks. Specifically, Nationwide asserts that
12
Nationwide had three lactation rooms at that time. See Nationwide’s Facts ¶ 65.
Ames asserts that Hallberg advised her not to express milk in a wellness room because
her milk may be exposed to germs. See Ames’s App. at 7, p. 81:19–23. Nationwide denies this
allegation. See id. at 31:1–13.
13
Ames disputes that Hallberg ever suggested that Ames could use her office to pump milk.
See Ames’s App. at 91 ¶ 15.
14
Ames alleges that Hallberg told her that the available wellness room was currently
occupied by a sick person and “the lock . . . was broken, so if [Ames] wanted any semblance of
privacy, [she] would need to put a chair against the door and sit in it while [she] pumped, so that
anyone trying to come in would strike [her] chair with the door and hopefully be discouraged
from entering. ” See Ames’s App. at 91 ¶¶ 9–10. Nationwide denies these allegations. See id. at
31:14–20.
15
Brian Brinks was Ames’s immediate supervisor. See Nationwide’s App. at 47, p.
10:16–19.
16
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Ames’s “work queue was up to date” when she came back to work on July 19, 2010.17 See
Nationwide’s App. at 52, p. 79:5–11. Furthermore, Brinks testified that “[o]vertime was
voluntary,” and that Ames was not required to work overtime. See id. at 52, p. 79:12–21.
Finally, Brinks denies telling Ames that he would start writing her up if she did not get caught up
on her work within two weeks. See id. at 52, pp. 80:15–81:5.
The unavailability of a lactation room, her urgent need to express milk, and Nationwide’s
“unrealistic and unreasonable expectations about her work production” caused Ames to resign
from her position because she “felt like she had no other choice.” See Am. Compl. ¶ 44. Ames
sued the Nationwide Defendants alleging: (1) sex and pregnancy discrimination under the Iowa
Civil Rights Act (“ICRA”), see Am. Compl. ¶¶ 51–54; (2) pregnancy and sex discrimination
under Title VII of the Civil Rights Act of 1964 (“Title VII”), see Am. Compl. ¶¶ 55–58; and (3)
violation of § 207 of the Fair Labor Standards Act (“FLSA”),18 see Am. Compl. ¶¶ 59–64. Ames
contends that Hallberg, Neel, Brinks, and Somphong Baccam (“Baccam”)19 discriminated against
her on the basis of sex, pregnancy, and nursing. See Nationwide’s App. at 86–93.
Specifically, Ames states that Hallberg discriminated against her by “providing a letter . .
. stat[ing] there was a three-day waiting period . . . to access a lactation room,” by offering her a
wellness room, and by advising Ames that her “milk could not be guaranteed” if she used a
Actually, Nationwide states that Ames’s “queue” was in much better condition when she
returned to work as compared to when she went on maternity leave. See Nationwide’s Facts ¶
74; Nationwide’s App. at 52, p. 79:10–11; 213–58.
17
Ames calls this alleged violation of section 207 of the FLSA “nursing discrimination.”
See Am. Compl. ¶ 1.
18
Baccam was the Nationwide disability case nurse assigned to Ames’s case. See
Nationwide’s Facts ¶ 61.
19
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wellness room. See id. at 87:11–23. Neel subjected Ames to discrimination by “eye-rolling,” by
telling Ames that Neel did not have to go on bed rest during her pregnancy,20 by stating that Neel
would never have a baby shower before her baby is born because the baby could die, and because
“[t]here was always a negative innuendo from [Neel] to [Ames.]” See id. at 88:17–89:16. With
respect to Brinks, Ames complains that he viewed her pregnancy as an inconvenience, refused to
help her lift a filing cabinet on one occasion, and made certain comments concerning Ames’s
maternity leave.21 See id. at 89:17–90:20. Lastly, Ames contends that Baccam discriminated
against her because Baccam had more information about Nationwide’s lactation policy but did
not share her knowledge with Ames, nor did she advise Ames to review the lactation policy on
her own. See id. at 93:14–23.
II. STANDARD FOR SUMMARY JUDGMENT
The term “summary judgment” is something of a misnomer. See D. Brock Hornby,
Summary Judgment Without Illusions, 13 Green Bag 2d 273 (Spring 2010). It “suggests a
judicial process that is simple, abbreviated, and inexpensive,” while in reality, the process is
Ames testified that Neel made the following comments regarding Ames’s pregnancy: ‘“I
never had this many problems when I was pregnant. All I needed was a pocketful of Tums, and I
was good to go.’” Nationwide’s App. at 92:15–17. Ames also claims that Neel “comment[ed]
on [her] size, about [her] carrying more than one baby because [she] was so big.” Id. at
92:17–19.
20
21
With respect to Brinks’s alleged comments, Ames testified as follows:
“Oh, yeah, I’m teasing her about only taking a week’s worth of maternity leave.
We’re too busy for her to take off that much work.” And everyone would chime in
with “Oh, yeah,” you know, “she can only be gone for a week. She already took her
eight weeks with Henry.”
Nationwide’s App. at 90:13–18.
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complicated, time-consuming, and expensive.22 Id. at 273, 281. The complexity of the process,
however, reflects the “complexity of law and life.” Id. at 281. “Since the constitutional right to
jury trial is at stake,” judges must engage in a “paper-intensive and often tedious” process to
“assiduously avoid deciding disputed facts or inferences” in a quest to determine whether a
record contains genuine factual disputes that necessitate a trial. Id. at 281–82. Despite the
seeming inaptness of the name, and the desire for some in the plaintiffs’ bar to be rid of it, the
summary judgment process is well-accepted and appears “here to stay.”23 Id. at 281. Indeed,
“judges are duty-bound to resolve legal disputes, no matter how close the call.” Id. at 287.
Federal Rule of Civil Procedure 56(a) provides that “[a] party may move for summary
judgment, identifying each claim or defense—or the part of each claim or defense—on which
summary judgment is sought.” “[S]ummary judgment is an extreme remedy, and one which is
not to be granted unless the movant has established his right to a judgment with such clarity as to
leave no room for controversy and that the other party is not entitled to recover under any
discernible circumstances.” Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207,
209 (8th Cir. 1976) (citing Windsor v. Bethesda Gen. Hosp., 523 F.2d 891, 893 n.5 (8th Cir.
1975)). The purpose of summary judgment is not “to cut litigants off from their right of trial by
Indeed, Judge Hornby, a District Court judge for the District of Maine, convincingly
suggests that the name “summary judgment” should be changed to “motion for judgment without
trial.” 13 Green Bag 2d at 284.
22
Judge Hornby notes that over seventy years of Supreme Court jurisprudence gives no hint
that the summary judgment process is unconstitutional under the Seventh Amendment. Id. at 281
(citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 336 (1979) and Sartor v. Arkansas Natural
Gas Corp., 321 U.S. 620, 627 (1944)). While he recognizes that not much can be done to reduce
the complexity of the summary judgment process, he nonetheless makes a strong case for
improvements in it, including, amongst other things, improved terminology and expectations and
increased pre-summary judgment court involvement. See id. at 283–88.
23
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jury if they really have issues to try.” Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 467
(1962) (quoting Sartor v. Ark. Natural Gas Corp., 321 U.S. 620, 627 (1944)). Rather, it is
designed to avoid “useless, expensive and time-consuming trials where there is actually no
genuine, factual issue remaining to be tried.” Anderson v. Viking Pump Div., Houdaille Indus.,
Inc., 545 F.2d 1127, 1129 (8th Cir. 1976) (citing Lyons v. Bd. of Educ., 523 F.2d 340, 347 (8th
Cir. 1975)). Summary judgment can be entered against a party if that party fails to make a
showing sufficient to establish the existence of an element essential to its case, and on which that
party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).
Federal Rule of Civil Procedure 56 mandates the entry of summary judgment upon
motion after there has been adequate time for discovery. Summary judgment is appropriately
granted when the record, viewed in the light most favorable to the nonmoving party and giving
that party the benefit of all reasonable inferences, shows that there is no genuine issue of material
fact, and that the moving party is therefore entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(a); Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994). The
Court does not weigh the evidence, nor does it make credibility determinations. The Court only
determines whether there are any disputed issues and, if so, whether those issues are both
genuine and material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Wilson v.
Myers, 823 F.2d 253, 256 (8th Cir. 1987) (“Summary judgment is not designed to weed out
dubious claims, but to eliminate those claims with no basis in material fact.”) (citing
Weightwatchers of Quebec, Ltd. v. Weightwatchers Int’l, Inc., 398 F. Supp. 1047, 1055
(E.D.N.Y. 1975)).
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In a summary judgment motion, the moving party bears the initial burden of
demonstrating the absence of a genuine issue of material fact based on the pleadings, depositions,
answers to interrogatories, admissions on file, and affidavits, if any. See Celotex, 477 U.S. at
323; Anderson, 477 U.S. at 248. If the moving party has carried its burden, the nonmoving party
must then go beyond its original pleadings and designate specific facts showing that there
remains a genuine issue of material fact that needs to be resolved by a trial. See Fed. R. Civ. P.
56(c). This additional showing can be by affidavits, depositions, answers to interrogatories, or
the admissions on file. Id.; Celotex, 477 U.S. at 322–23; Anderson, 477 U.S. at 257. “[T]he
mere existence of some alleged factual dispute between the parties will not defeat a motion for
summary judgment; the requirement is that there be no genuine issue of material fact.”
Anderson, 477 U.S. at 247–48. An issue is “genuine” if the evidence is sufficient to persuade a
reasonable jury to return a verdict for the nonmoving party. See id. at 248. “As to materiality,
the substantive law will identify which facts are material . . . . Factual disputes that are irrelevant
or unnecessary will not be counted.” Id.
Courts do not treat summary judgment as if it were a paper trial. Therefore, a “district
court’s role in deciding the motion is not to sift through the evidence, pondering the nuances and
inconsistencies, and decide whom to believe.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918,
920 (7th Cir. 1994). In a motion for summary judgment, the Court’s job is only to decide, based
on the evidentiary record that accompanies the moving and resistance filings of the parties,
whether there really is any material dispute of fact that still requires a trial. See id. (citing
Anderson, 477 U.S. at 249 and 10 Charles A. Wright & Arthur R. Miller, Federal Practice &
Procedure § 2712 (3d ed. 1998)).
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III. LAW AND ANALYSIS
Defendants move for summary judgment on all three counts of Ames’s Amended
Complaint: (1) sex and pregnancy discrimination in violation of the ICRA, see Am. Compl. ¶¶
51–54; (2) sex and pregnancy discrimination in violation of Title VII, see Am. Compl. ¶¶ 55–58;
and (3) violation of 29 U.S.C. § 207, see Am. Compl. ¶¶ 59–64. See Br. in Supp. of Defs.’ MSJ
(“Nationwide’s Br.”) at 8–35.
A. 29 U.S.C. § 207(r)
Returning to work promptly after childbirth, coupled with the desire to continue breastfeeding, exposes women to a unique and often challenging set of circumstances. To many,
expressing breast milk in the workplace is incompatible with the desire to pursue a successful
career. With respect to these challenges and the resulting social response, the Honorable Lewis
A. Kaplan commented as follows:
The transformation in the role of women in our culture and workplace in recent
decades and the civil rights movement perhaps will be viewed as the defining social
changes in American society in this century. Both have resulted in important federal,
state and local legislation protecting those previously excluded from important roles
from discrimination in pursuit of the goal of equality. Nevertheless, few would deny
that the problems facing women who wish to bear children while pursuing
challenging careers at the same time remain substantial.
Martinez v. MSNBC, 49 F. Supp. 2d 305, 306 (S.D.N.Y. 1999). In Martinez, the plaintiff sued
her employer for being “insufficiently accommodating of [her] desire to pump breast milk in the
workplace so that she could breast[-]feed her child while also returning to work promptly after
childbirth.” Id.
In the present case, Ames makes similar allegations. Specifically, she claims that the
Nationwide Defendants violated 29 U.S.C. § 207(r) by failing to provide her, on July 19, 2010,
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“with reasonable time to express breast milk in a private location, free from intrusion and
shielded from the view of the public or other employees, at the time necessary to express breast
milk.” Am. Compl. ¶ 60. Defendants respond by arguing that the FLSA does not provide a
private cause of action to redress alleged violations of 29 U.S.C. § 207(r).24 See Nationwide’s
Br. at 9. The Court agrees.
Although § 207(r) is relatively new,25 at least one court has wrestled with the issue
presently before the Court—whether the FLSA provides a private cause of action for violations
of § 207(r). See Salz v. Casey’s Mktg. Co., No. 11-cv-3055, 2012 U.S. Dist. LEXIS 100399, at
*6–7 (N.D. Iowa July 19, 2012). In holding that the FLSA does not provide a private cause of
action, the Honorable Donald E. O’Brien reasoned as follows:
The express breast milk provisions are codified at 29 U.S.C. § 207(r). 29 U.S.C. §
207(r) provides:
(r)(1) An employer shall provide—
(A) 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
(B) 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.
(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.
The enforcement [provision] for violations of 29 U.S.C. § 207 [is] 29 U.S.C. §
Even if there was a private cause of action, the Nationwide Defendants maintain that they
complied with 29 U.S.C. § 207(r). See Nationwide’s Br. at 9.
24
25
29 U.S.C. § 207(r) was enacted on March 23, 2010.
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216(b). In pertinent part, 29 U.S.C. § 216(b) provides,
Any employer who violates the provisions of section . . . 207 of this
title shall be liable to the employee or employees affected in the
amount of their unpaid minimum wages, or their unpaid overtime
compensation, as the case may be, and in an additional equal amount
as liquidated damages.
Since Section 207(r)(2) provides that employers are not required to compensate
employees for time spent express milking [sic], and Section 216(b) provides that
enforcement of Section 207 is limited to unpaid wages, there does not appear to be
a manner of enforcing the express breast milk provisions. A recent notice from the
Department of Labor corroborates Defendant’s interpretation and limits an employee
to filing claims directly with the Department [of] Labor. Reasonable Break Time for
Nursing Mothers, 75 Fed. Reg. 80073, 80078 (Dec. 21, 2010). The Department of
Labor may then “seek injunctive relief in federal district court . . . .”
Id. Although Salz does not constitute binding authority, the Court finds its logic irrefutable and,
accordingly, adopts its holding.26 Therefore, since Ames cannot bring a claim for any alleged
violation of 29 U.S.C. § 207(r), the Court grants summary judgment for Defendants.
B. Sex, Pregnancy,27 and Nursing28 Discrimination
Since the Court holds that the FLSA does not provide a private cause of action to remedy
alleged violations of § 207(r), the Court need not decide whether, on July 19, 2010, the
Nationwide Defendants complied with this provision.
26
Under the Pregnancy Discrimination Act (“PDA”), pregnancy discrimination falls within
the scope of, and is a type of, gender discrimination. See Falk v. City of Glendale, No. 12-cv00925, 2012 U.S. Dist. LEXIS 87278, at *8 n.5 (D. Colo. June 25, 2012). Therefore, the Court
will analyze Ames’s claims for pregnancy and gender discrimination as a single claim. See id.
27
Ames argues that she is a member of a protected class—that of lactating mothers. See
Pl.’s Resistance Br. at 17–23. In support, Ames argues that lactation is a medical condition
related to her pregnancy. See id. at 17–18 (citing 42 U.S.C. § 2000e(k)). Several courts,
however, have considered and rejected the argument that terminating an employee due to
lactation is gender or pregnancy discrimination. See EEOC v. Houston Funding II, Ltd., et al.,
No. H-11-2442, 2012 U.S. Dist. LEXIS 13644, at *3–4 (S.D. Tex. Feb. 2, 2012) (“Firing
someone because of lactation or breast-pumping is not sex discrimination.”) (collecting cases).
28
In disputing the soundness of these cases’ legal analyses, Ames relies primarily on Falk.
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Ames argues that the record in this case contains direct and circumstantial evidence that
the Nationwide Defendants illegally discriminated against her in violation of Title VII and the
ICRA. See Pl.’s Br. in Supp. of Resistance to Defs.’ MSJ (“Pl.’s Resistance Br.”) at 14–30.
Defendants disagree and assert that, on the present record, summary judgment is appropriate
See Pl.’s Resistance Br. at 19–20. After providing an overview of existing case law surrounding
lactation, the Falk court summarized:
As it stands, no existing case law correctly excludes lactation or other conditions
experienced by the mother as a result of breast-feeding from Title VII protection
under the PDA. A plaintiff could potentially succeed on a claim if she alleged and
was able to prove that lactation was a medical condition related to pregnancy, and
that this condition, and not a desire to breastfeed, was the reason for the
discriminatory action(s) that she suffered.
Falk, 2012 U.S. Dist. LEXIS 87278, at *13 n.7 (emphasis added). Ames has not presented
sufficient evidence that lactation is a medical condition related to pregnancy. Indeed, as the
Nationwide Defendants point out, “lactation can be induced by stimulating the body to produce
milk even though the person has not experienced a recent birth or pregnancy.” Defs.’ Reply Br.
in Supp. of MSJ (“Nationwide’s Reply Br.”) at 12 n.9. Additionally, the Court takes judicial
notice of the fact that adoptive mothers can also breast-feed their adoptive babies. See Defs.’
App. at 323–25 (stating that adoptive mothers can breast-feed their adoptive babies and
describing what adoptive mothers should do to stimulate milk production). Furthermore, it is a
scientific fact that even men have milk ducts and the hormones responsible for milk production.
See Nikhil Swaminathan, Strange but True: Males Can Lactate, SCI. AM ., Sept. 6, 2007,
available at
http://www.scientificamerican.com/article.cfm?id=strange-but-true-males-can-lactate&sc=rss.
Accordingly, lactation is not a physiological condition experienced exclusively by women who
have recently given birth.
Assuming, arguendo, that Ames had presented sufficient evidence that lactation was a
medical condition related to pregnancy, the Court is doubtful that she has presented enough facts
to establish that her alleged constructive discharge was due to her medical condition (lactation)
rather than due to her desire to breast-feed. See Falk, 2012 U.S. Dist. LEXIS 87278, at *13 n.7.
Indeed, Ames’s Amended Complaint contains several references to her desire to pump milk as a
form of nutrition for her newborn son. See Am. Compl. ¶¶ 22–23, 32, 42, 45. As Falk held,
however, “Title VII does not extend to breast-feeding as a child care concern.” Falk, 2012 U.S.
Dist. LEXIS 87278, at *10.
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because: (1) Ames has not presented direct evidence of sex, pregnancy, or nursing
discrimination; and (2) Ames has not presented sufficient circumstantial evidence to establish a
prima facie case of sex, pregnancy, or nursing discrimination. See generally Nationwide’s Br. at
13–35; Defs.’ Reply Br. in Supp. of MSJ (“Nationwide’s Reply Br.”) at 7–19.
Federal case law supplies the basic framework for deciding cases under the ICRA. Quick
v. Donaldson Co., Inc., 90 F.3d 1372, 1380 (8th Cir. 1996) (citing Iowa State Fairgrounds Sec.
v. Iowa Civil Rights Comm’n, 322 N.W.2d 293, 296 (1982)). Iowa courts “traditionally turn to
federal law for guidance on evaluating the ICRA, but federal law . . . is not controlling.” Vivian
v. Madison, 601 N.W.2d 872, 873 (Iowa 1999) (citations omitted). Neither party posits any
separate legal arguments regarding Ames’s ICRA claim. The Court, therefore, will address
Ames’s federal and state law claims of sex, pregnancy, and nursing discrimination together.
The analytical framework for discrimination claims under Title VII uses two separate
frameworks to determine whether a plaintiff was subject to discrimination. The choice between
the two analyses depends on whether a plaintiff presents direct evidence of the alleged
discrimination, thereby warranting a “mixed motive” theory of analysis as explained in Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989), or indirect or circumstantial evidence of the
alleged discrimination which requires a “burden-shifting” framework of analysis under
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
1.
Direct evidence.
If a plaintiff produces direct evidence of the alleged discrimination, the plaintiff must
persuade the fact-finder under the “mixed motive” theory of analysis. The plaintiff must
persuade the fact-finder that, more likely than not, discrimination was “a motivating part in an
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employment decision.” Price Waterhouse, 490 U.S. at 254. The burden then “shifts to the
employer to prove that the employment decision would nevertheless have been made for
legitimate, nondiscriminatory reasons.” Yates v. McDonnell-Douglas, 255 F.3d 546, 548 (8th
Cir. 2001). Direct evidence of discrimination has been defined by the Eighth Circuit as
“evidence or conduct or statements by persons involved in the decision-making process that is
sufficient for the fact-finder to find that a discriminatory attitude was more likely than not a
motivating factor in the employers’ decision.” Kerns v. Capital Graphics, Inc., 178 F.3d 1011,
1017 (8th Cir. 1999). The Eighth Circuit goes on to state that “such evidence might include
proof of an admission that gender was the reason for an action, discriminatory references to the
particular employee in a work context, or stated hostility to women being in the workplace at
all.” Id.; see also Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991) (“[D]irect evidence
may include evidence of actions or remarks of the employer that reflect a discriminatory
attitude[,] . . . [c]omments which demonstrate a ‘discriminatory animus in the decisional
process[,]’ . . . or those uttered by individuals closely involved in employment decisions.”
(citations omitted)). “[S]tray remarks in the workplace, statements by nondecisionmakers, [and]
statements by decisionmakers unrelated to the decisional process itself are not, however, direct
evidence of discrimination.” See Beshears, 930 F.2d at 1354 (citing Price Waterhouse, 490 U.S.
at 277 (O’Connor, J., concurring)) (internal quotation marks omitted).
In 1976, the U.S. Supreme Court held that pregnancy discrimination was not gender
discrimination. See Gen. Elec. Co. v. Gilbert, 429 U.S. 125 (1976). In response to Gilbert, in
1978, Congress passed the Pregnancy Discrimination Act (“PDA”). See Falk, 2012 U.S. Dist.
LEXIS 87278, at *9. The PDA amended Title VII by extending gender discrimination to include
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discrimination on the basis of pregnancy, childbirth, or related medical conditions. See id. at *10
(citing 42 U.S.C. § 2000e(k)); see also Piantanida v. Wyman Ctr., Inc., 116 F.3d 340, 341 (8th
Cir. 1997). Currently, the relevant section reads, in part, as follows:
The terms “because of sex” or “on the basis of sex” include, but are not limited to,
because of or on the basis of pregnancy, childbirth, or related medical conditions; and
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.
42 U.S.C. § 2000e(k).
Ames argues that she has direct evidence of gender discrimination. See Pl.’s Resistance
Br. at 14–17. This direct evidence is the following comment that Neel allegedly made to Ames
“at the exact same time she was handing [Ames] a piece of paper and telling her what she needed
to write down in order to resign”: “‘Maybe you should just stay home with your babies.’” See
id. at 15. Neel denies making this comment. See App. to Defs.’ MSJ (“Nationwide’s App.”) at
287, pp. 87:25–88:12. Assuming, arguendo, that Neel did indeed make this comment, the Court
finds that, under Eighth Circuit law, it does not constitute direct evidence of discrimination.
In arguing to the contrary, Ames relies primarily on Sheehan v. Donlen Corp., 173 F.3d
1039 (7th Cir. 1999). See Pl.’s Resistance Br. at 16. In Sheehan, contemporaneously with telling
the plaintiff that she was terminated, her supervisor added: “Hopefully this will give you some
time to spend at home with your children.” See Sheehan, 173 F.3d at 1043. The next day, the
supervisor also told the plaintiff’s co-workers that she had been terminated because “‘we felt that
this would be a good time for [Sheehan] to spend some time with her family.’” Id. The Sheehan
court held that a reasonable jury could conclude that these comments were direct evidence of
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pregnancy discrimination. See id. at 1044.
Sheehan does not automatically compel the conclusion that Ames has mounted direct
evidence of discrimination, however. To determine whether the comment at issue in this case
constitutes direct evidence of sex discrimination, under Eighth Circuit law, the Court must
analyze the speaker, the comment’s content, and the causal connection between the comment and
the adverse employment action. See Wensel v. State Farm Mut. Auto. Ins. Co., 218 F. Supp. 2d
1047, 1059 (N.D. Iowa 2002) (citing Bauer v. Metz Baking Co., 59 F. Supp. 2d 896, 901–06
(N.D. Iowa 1999)).
a.
The speaker.
To constitute direct evidence of prohibited discrimination, the comment must be made by
someone “involved in the decisionmaking process” and must concern the adverse employment
action. See Wensel, 218 F. Supp. 2d at 1059 (internal citations and quotation marks omitted). It
is not necessary, however, that the speaker be the “final decisionmaker.” See id. At all relevant
times, Neel was the Associate Vice President, who oversaw the Loss Mitigation Department,
where Ames worked. See Nationwide’s Facts ¶ 5; Nationwide’s App. at 54, p. 10:13–25.
Therefore, a reasonable fact-finder could infer that Neel was certainly involved in the alleged
decision to force Ames into resigning from her position.
b.
The content of the comment.
Only comments by decision-makers that are “sufficient for a fact[-]finder to find that a
discriminatory attitude was more likely than not a motivating factor in the employer’s deicion”
would rise to the level of direct evidence of discrimination. See Wensel, 218 F. Supp. 2d at
1059–60 (citing Metz Baking Co., 59 F. Supp. 2d at 904) (internal quotation marks omitted)
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(emphasis in original).
The Court finds that, under Eighth Circuit law, “Maybe you should just stay home with
your babies” does not constitute direct evidence of sex discrimination. Rather, this comment is
based on Ames’s gender-neutral status as a new parent. See Piantanida, 116 F.3d at 342.
“[D]iscrimination based on one’s status as a new parent is not prohibited by the PDA.” Id. at
341. In Piantanida, the court held, in the context of demoting the plaintiff, that the employer’s
statement that “she was being given a position ‘for a new mom to handle’” was not direct
evidence of gender discrimination.29 Id. Similarly, in Wensel, the court held that the defendant’s
statements30 regarding the effect of child-rearing on insurance agents’ productivity were genderDuring her deposition, the Piantanida plaintiff conceded that her demotion was not
related to her pregnancy or maternity. See Piantanida, 116 F.3d at 341. Thus, the district court
analyzed her Title VII claim as a gender discrimination claim “on the basis of her status as a
‘new mother.’” See Piantanida, 927 F. Supp. at 1230 n.1. Although it is axiomatic that only
women can be “new mom[s],” the Eighth Circuit nevertheless held that the comment at issue was
gender-neutral. See Piantanida, 116 F.3d at 342.
29
Ames, however, argues that “Maybe you should just stay home with your babies” is not a
gender-neutral comment, but rather one that “invoke[s] widely understood stereotypes the
meaning of which is hard to mistake.” See Pl.’s Resistance Br. at 16 (citing Sheehan, 173 F.3d at
1044–45 (internal quotation marks omitted)). The Sheehan court held that the following two
comments constituted direct evidence of gender discrimination because they invoked “widely
understood stereotypes” regarding women’s ability to balance work and child-rearing: (1)
“Hopefully this will give you some time to spend at home with your children”; and (2) “we felt
that this would be a good time for [the plaintiff] to spend some time with her family.” See
Sheehan, 173 F.3d at 1043. Indeed, on the authority of Sheehan, one would be hard-pressed to
argue that either the comment in Piantanida or Neel’s alleged comment in this case do not
invoke such stereotypes. Sheehan, however, is not binding on the Court while Piantanida is.
Accordingly, the Court is compelled to follow Piantanida and hereby holds that “Maybe you
should just stay home with your babies” is a gender-neutral comment that does not support
Ames’s claim for gender discrimination.
There were two statements at issue in Wensel: “(1) that Wensel should wait at least five
years before starting a family; and (2) that pregnancy and child-rearing harm an agent’s ability to
meet his or her productivity goals.” Wensel, 218 F. Supp. 2d at 1060.
30
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neutral and, therefore, not direct evidence of gender discrimination. See Wensel, 218 F. Supp. 2d
at 1061–62.
In light of Piantanida and Wensel, the Court must conclude that “Maybe you should stay
home with your babies” is, at best, evidence of discrimination on the basis of Ames’s status as a
new parent. Being a parent is not gender-specific as this class also includes men and women
who will never become pregnant. See Piantanida, 116 F.3d at 342. Accordingly, since
discriminating against Ames on account of her status as a parent would not be discrimination
“because of or on the basis of [her] pregnancy, childbirth, or related medical conditions,” the
Court finds that no reasonable fact-finder could conclude that the alleged comment constitutes
direct evidence of gender discrimination.
c.
Causal connection.
Since the Court has determined that no reasonable jury could conclude that the comment
Ames cites is direct evidence of sex discrimination, the Court need not decide whether there was
causation between the alleged comment and Ames’s alleged constructive discharge.
Accordingly, since no reasonable fact-finder could conclude that the comment at issue,
assuming it was uttered by Neel, constitutes direct evidence of sex discrimination, the Court now
turns to the McDonnell Douglas framework to analyze any purported circumstantial evidence of
sex discrimination.
2.
Circumstantial evidence.
Where a plaintiff relies on circumstantial, rather than direct, evidence of intentional
discrimination, the court applies the three-stage burden shifting approach developed by the
Supreme Court in McDonnell-Douglas, and later refined in Texas Dep’t of Cmty. Affairs v.
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Burdine, 450 U.S. 248 (1981); see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07
(1993); Dammen v. UniMed Med. Ctr., 236 F.3d 978, 980 (8th Cir. 2001).
Under the McDonnell Douglas framework, the plaintiff bears the initial burden of
establishing a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802. If
the plaintiff establishes a prima facie case, the burden of production shifts at the second stage to
the defendant, who must articulate some legitimate, nondiscriminatory reason for the adverse
employment action. See Burdine, 450 U.S. at 253. If the defendant carries this burden of
production, the presumption raised by the prima facie case is rebutted and “drops from the case.”
Id. at 255 n.10. The burden then shifts back at the third and final stage to the plaintiff, who is
given the opportunity to show that the employer’s proffered reason was merely a pretext for
discrimination. Id. at 253. The ultimate burden remains with the plaintiff at all times to
persuade the trier of fact that the adverse employment action was motivated by intentional
discrimination. Id.
To establish a prima facie case of sex discrimination, Ames must show that: (1) she is a
member of a protected class;31 (2) she met applicable job qualifications; (3) despite her
Defendants dispute that Ames is a member of a protected class. See Nationwide’s Br. at
16–18. Although this Order does not specifically address this prong of Ames’s prima facie case,
the Court finds Defendants’ argument persuasive. Ames appears to assert a protected status on
the basis of her pregnancy and lactation. See Pl.’s Resistance Br. at 17–23. To the extent that
Ames asserts a protected status on the basis of lactation, the Court finds she has failed to show
that she belongs to a protected class because lactation is not pregnancy, childbirth, or a related
medical condition. See supra n. 28; see also 42 U.S.C. § 2000e(k). To the extent that she claims
a protected status on the basis of her pregnancy, the Court notes that Ames has not put forth
sufficient evidence that there was a connection between Defendants’ alleged discriminatory
comments and conduct and Ames’s alleged constructive discharge. See Neesen v. Arona Corp.,
708 F. Supp. 2d 841, 850 (N.D. Iowa 2010) (stating that the PDA does not apply “exclusively to
women who are pregnant or suffer from a pregnancy-related disability” but that the alleged
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qualifications, she suffered an adverse employment action; and (4) the circumstances permit an
inference of discrimination. See Lewis v. Heartland Inns of Am., LLC, 591 F.3d 1033, 1038 (8th
Cir. 2010). “The burden of establishing a prima facie case of disparate treatment is not onerous.”
Burdine, 450 U.S. at 253. The McDonnell Douglas framework for establishing a prima facie
case of illegal discrimination “was never intended to be rigid, mechanized, or ritualistic.”
Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978). This framework’s central focus is to
determine whether the employer has treated some employees less favorably than others for an
impermissible reason. See id.
The Nationwide Defendants concede, for purposes of summary judgment, that Ames was
qualified for her position as a loss mitigation specialist. See Nationwide’s Br. at 15. They
dispute, however, that Ames suffered an adverse employment action under circumstances
permitting an inference of discrimination.
a.
Adverse employment action.
Constructive discharge is a type of an adverse employment action. See Smith v. Lake
Ozark Fire Dist., No. 10-cv-4100, 2011 U.S. Dist. LEXIS 64722, at *22–23 (W.D. Mo. June 13,
2011) (citing Farcello v. County of Ramsey, 612 F.3d 1069, 1083 (8th Cir. 2010)). “The bar to
relief [in constructive discharge cases], however, is high.” Farcello, 612 F.3d at 1083 (citing
O’Brien v. Dep’t of Agric., 532 F.3d 805, 810–11 (8th Cir. 2008)). To prevail on her
constructive discharge claim, Ames must establish that: (1) a reasonable person would find her
working conditions at Nationwide intolerable; and (2) Nationwide intended to force her to resign
discrimination must be “because of or on the basis of pregnancy”).
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from her employment or could have “reasonably foreseen” that she would resign. See id.
(internal citation omitted). Ames must also establish that she gave the Nationwide Defendants a
reasonable chance to resolve the issues. See West v. Marion Merrell Dow, Inc., 54 F.3d 493, 498
(8th Cir. 1995) (“Part of an employee’s obligation to be reasonable is an obligation not to
assume the worst and not to jump to conclusions too fast . . . . An employee who quits without
giving her employer a reasonable chance to work out a problem is not constructively
discharged.”) (emphasis in original) (internal quotation marks omitted)).
Whether an employee has been constructively discharged is judged by an objective
standard. See Buboltz v. Residential Advantages, Inc., 523 F.3d 864, 869 (8th Cir. 2008) (“[A]
constructive discharge takes place only when a reasonable person would find [the] working
conditions intolerable.”). “Unpleasant [or] unprofessional [work] environment” is insufficient to
establish a constructive discharge. Jones v. Fitzgerald, 285 F.3d 705, 716 (8th Cir. 2002)
(declining to find that the plaintiff had been constructively discharged even though two of her coworkers had called her a “skank,” made harsh comments concerning her cohabitation with a man
to whom she was not married, exhibited hostile attitudes, stuck their tongues out at her,
“whisper[ed] in hushed voices in her presence, abruptly ceas[ed] conversations in her presence,”
and socially isolated her). Work atmosphere that is less than ideal will not, by itself, support a
successful constructive discharge claim because such atmosphere would not compel a reasonable
person to resign. See Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1160 (8th Cir.
1999).
i.
Intolerableness of working conditions.
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At trial, Ames would bear the burden of showing that a reasonable person32 would have
found her working condition intolerable, thus leaving her no choice but to quit. See Wensel, 218
F. Supp. 2d at 1064 (internal citations omitted). In support of her claim of intolerable conditions,
Ames relies on the following factors: (1) she was not given immediate access to a lactation room
on July 19, 2010; (2) at the time she resigned, “it had been over five hours since she had last
expressed milk and [she] was in considerable physical pain”; and (3) during her meeting with
Brinks, he allegedly told her that none of her work had been done during her maternity leave, that
she had to work overtime to get caught up, and that if Ames did not catch up within two weeks,
she would be disciplined. See Pl.’s Resistance Br. at 24–27. Although not specifically set forth
in her resistance brief, in arguing that she was constructively discharged, Ames seems to also rely
on the following allegations: (4) Neel asked her to return to work on July 19, 2010 rather than
the originally provided date of August 2, 2010; (5) Defendants did not provide her with
information regarding Nationwide’s lactation policy; and (6) Neel, Brinks, Baccam, and Hallberg
discriminated against her during and after her pregnancy. See Nationwide’s Br. at 16.
Ames urges that the reasonable person standard applicable to her constructive discharge
claim must account for the following factors: (1) the day she resigned was her first day back to
work following the birth of her second child; (2) “she [was] battling the array of hormones
common in a woman eight weeks post-partum”; (3) she was lactating and her breasts were
engorged “from not being allowed to express milk”; and (4) she was excited to return to work but
also sad to leave her newborn in somebody else’s care. See Pl.’s Resistance Br. at 24. The Court
disagrees with Ames’s contention as adopting it would effectively transform the objective test
into a subjective one. See Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985)
(“[T]he law does not permit an employee’s subjective perceptions to govern a claim of
constructive discharge.”); Angier v. Henderson, No. 00-215, 2001 U.S. Dist. LEXIS 15310, at
*18 n.3 (D. Minn. Aug. 3, 2010) (“[W]hen analyzing the merits of a constructive discharge
claim, the fact[-]finder does not evaluate the workplace from the subjective viewpoint of the
plaintiff.”).
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After analyzing the substance of these factors, the Court finds that they revolve around
four common themes: (1) the alleged discrimination; (2) the revised return-to-work date; (3)
Nationwide’s lactation policy; and (4) the job expectations following Ames’s return from
maternity leave. Even if all of these factors were present, as Ames insists, the Court finds that
they would still be insufficient to induce a reasonable fact-finder to conclude that Ames’s
working conditions were intolerable.
a)
Alleged discrimination.
Ames maintains that Neel, Brinks, Hallberg, and Baccam subjected her to discrimination.
Neel allegedly discriminated against Ames by “eye-rolling,” by telling Ames that she did not
have to go on bed rest during her pregnancy, by stating that she would never have a baby shower
before her baby is born because the baby could die, and because “[t]here was always a negative
innuendo from her to [Ames.]” See Nationwide’s App. at 88:17–89:16. Ames testified that Neel
also commented regarding Ames’s pregnancy as follows: ‘“I never had this many problems
when I was pregnant. All I needed was a pocketful of Tums, and I was good to go.’” Id. at
92:15–17. Furthermore, Neel allegedly “comment[ed] on [Ames’s] size, about [Ames’s]
carrying more than one baby because [she] was so big.” Id. at 92:17–19.
With respect to Brinks, Ames complains that he viewed her pregnancy as an
inconvenience, refused to help her lift a filing cabinet on one occasion, and made certain
comments concerning her maternity leave. See id. at 89:17–90:20. Specifically, at her
deposition, Ames testified as follows regarding Brinks’s alleged comments:
“Oh, yeah, I’m teasing her about only taking a week’s worth of maternity leave.
We’re too busy for her to take off that much work.” And everyone would chime in
with “Oh, yeah,” you know, “she can only be gone for a week. She already took her
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eight weeks with Henry.”
Id. at 90:13–18.
Next, Ames alleges that Hallberg discriminated against her by “providing a letter . . .
stat[ing] there was a three-day waiting period . . . to access a lactation room,” by offering her a
wellness room to pump milk, and by advising Ames that her “milk could not be guaranteed” if
she uses a wellness room. See id. at 87:11–23. Lastly, Ames contends that Baccam
discriminated against her because Baccam had more information about Nationwide’s lactation
policy, but did not share her knowledge with Ames and did not advise Ames to review the
lactation policy on her own. See id. at 93:14–23.
The Court finds that a reasonable fact-finder would conclude that, objectively, these
instances of alleged discrimination would not cause a reasonable person in Ames’s position to
believe that she had no choice but to resign. Applying the reasonable person standard, the Court
concludes that, at most, the comments and conduct at issue created a less than ideal and,
arguably, unpleasant work environment for Ames. As held by the Jones and Breeding courts,
however, this is insufficient to cause a reasonable person to believe that she has no choice but to
resign. Furthermore, the Court notes that the facts of the present case paint a picture far less
reprehensible than the one in Jones, where the Court declined to find that the plaintiff had been
constructively discharged.
Although a reasonable fact-finder would conclude that Neel’s and Brinks’s comments
were insufficient for a successful constructive discharge claim, the Court believes that these
comments at least allow Ames to raise a colorable constructive discharge claim. The same
cannot be said for Hallberg’s and Baccam’s alleged discriminatory conduct. Ames complains
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that Hallberg discriminated against her by providing her with a letter stating that there was a
three-day waiting period before obtaining access to a lactation room and by offering Ames use of
a wellness room in the meantime. What Ames finds objectionable and discriminatory in
Baccam’s conduct is her failure to voluntarily and on her own initiative inform Ames of the
contents of Nationwide’s lactation policy. A reasonable fact-finder would not conclude that this
constitutes culpable conduct. Therefore, the Court holds, as a matter of law, that neither Hallberg
nor Baccam contributed to the alleged intolerable working conditions.
b)
Revised return-to-work date.
Ames contends that having to report back to work two weeks prior to the originally
scheduled return date of August 2, 2010 created or at least contributed to creating intolerable
work conditions. The Court disagrees. It is undisputed that Ames was originally told that she
could remain on maternity leave33 until August 2, 2010. See Nationwide’s App. at 204. On June
16, 2010, however, Neel informed her in a telephone call that the August 2, 2010 date had been
incorrectly calculated.34 See id. Before ending the phone call, Ames and Neel agreed that Ames
would return to work on July 19, 2010. See id. Notably, Ames acknowledged that returning to
work on July 19, 2010 would be “fine.”35 See id.
The Court refers to the leave provided to new mothers by the Family Medical Leave Act
(“FMLA”) as maternity leave.
33
Neel explained that the maternity leave authorized by the FMLA is calculated on a rolling
twelve-month basis. See Nationwide’s App. at 204. Ames was not entitled to the full FMLA
leave following the birth of her second child because she had already used some FMLA leave
during the preceding twelve months due to the birth of her first child. See id.
34
The Court notes that Ames agreed to return to work on July 19, 2010 before Neel stated
that remaining on maternity leave until August 2, 2010 would “cause[] red flags . . . and
problems like that.” See Nationwide’s App. at 204.
35
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There is no doubt that reporting back to work sooner than expected came as a shock to
Ames. See id. The Nationwide Defendants, however, had a legitimate reason for requiring
Ames to do so—the length of her maternity leave had been miscalculated. See id. Defendants
did not deprive Ames of her rights under the Family Medical Leave Act (the “FMLA”). To the
contrary, they extended Ames’s maternity leave by one week. See id. In light of this extension,
the fact that Defendants did not prejudice Ames’s rights under the FMLA, and the fact that Ames
had more than thirty days to prepare for returning to work on July 19, 2010, the Court concludes
that, in the eyes of a reasonable fact-finder, the June 16, 2010 telephone call would not lead a
reasonable person in Ames’s position to believe that she had no choice but to resign.
c)
Lactation policy and lactation room access.
It is undisputed that Ames could not have been given access to a lactation room on July
19, 2010 because she had not filled out the required paperwork beforehand. See supra n.11. It is
also undisputed, however, that Ames was able to use one of the wellness rooms to pump milk
that day.36 See Nationwide’s App. at 73:4–8. Even if Ames did not consider the wellness rooms
a satisfactory accommodation, using a wellness room was only a temporary solution until she
was granted access to a lactation room. See Ames’s App. at 7, p. 81:16–19 (“[T]here was a
three-day waiting period for [Ames] to access a lactation room.”).
Furthermore, although Ames refuses to accept any blame for not familiarizing herself
with Nationwide’s lactation policy, the fact remains that the policy was readily available to her.
Compare Nationwide’s App. at 87, p. 93:11–23 (Ames stating that Baccam discriminated against
Prior to creating the three lactation rooms, nursing mothers used the wellness rooms to
express milk. See Ames’s App. at 31:1–4.
36
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her by not explaining Nationwide’s lactation program) with Nationwide’s App. at 81:5–14;
84:14–85:16; 93:14–23 (Ames admitting that Nationwide’s lactation policy was available on the
company intranet, that she could have obtained information regarding the lactation policy during
one of the quarterly maternity meetings but never attended any of those meetings because of her
workload, and that she could have asked Baccam how to arrange for a lactation room access
before returning to work). Even if Ames’s workload was indeed so heavy that she could not
attend any of the quarterly maternity meetings, she certainly could have reviewed Nationwide’s
lactation policy at some time during her pregnancy or during her maternity leave following the
birth of her second child.37 Similarly, prior to returning to work, Ames could have asked Baccam
any questions concerning Nationwide’s lactation policy, including how to obtain access to a
lactation room, but did not do so.
A reasonable person in Ames’s position would have done what is necessary to familiarize
herself with Nationwide’s lactation policy before returning to work. After all, going back to
work did not come as a surprise to Ames; she knew on June 16, 2010 that she had to report back
to work on July 19, 2010. Thus, she had over a month to prepare. The Court is not insensitive to
the burdens and stresses associated with parenthood, particularly those experienced by new
mothers. Being under stress, however, does not excuse Ames from doing what any reasonable
person in her position would have done. Therefore, the Court concludes that no reasonable factfinder would determine that the unavailability of a lactation room on July 19, 2010 would lead a
reasonable employee in Ames’s position to believe that her only option was to resign. See
The Court notes that Nationwide’s lactation policy is approximately three pages long.
See Nationwide’s App. at 148, 150–51.
37
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Jerkovich v. Freson-Madera of Am. Red Cross, No. CV-F-04-5811, 2005 U.S. Dist. LEXIS
44827, at *52 (E.D. Cal. Aug. 23, 2005) (“Plaintiff was provided a secure and private place for
her lactation needs[, albeit an unsanitary computer room]; even if less than ideal, this
accommodation would not prompt a reasonable employee to believe that her only option was to
quit.”).
d)
Job expectations.
Similarly, regardless of the contents of the July 19, 2010 conversation between Ames and
Brinks, no reasonable jury would find that a reasonable employee in Ames’s position would
believe that her only option was to resign. Ames alleges that, during that meeting, Brinks told
her that none of her work had been done while she was on maternity leave,38 that she had two
weeks to catch up, and that she had to work overtime to do so. See Ames’s App. at 91 ¶¶ 11–12.
Also, Brinks allegedly told Ames that she would be formally disciplined unless she was
completely caught up on her work in two week’s time. See id. ¶ 12. Even assuming that Brinks
indeed made these statements, the Court determines that no reasonable jury would conclude that
Ames asserts that Brinks told her that none of her work had been done while she was on
maternity leave and that she had two weeks to catch up on all the work that had been piling up.
See Ames’s App. at 43. Brinks disputes that none of Ames’s work had been done. See Ames’s
App. at 27, pp. 79:22–80:10. Ames’s assertion is also contradicted by Nationwide’s reports
showing that, as of July 19, 2010, Ames’s work queue was in a better condition than when she
took her maternity leave. See Nationwide’s App. at 213–58. The parties’ disagreement on this
issue does not create a genuine dispute. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986) (stating that a “metaphysical doubt” does not create a genuine dispute);
see also Middleton v. Am. Standard Cos., No. 06-2205, 2007 U.S. Dist. LEXIS 69733, at *28
(W.D. Ark. Sept. 20, 2007) (“When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a motion for summary judgment.”).
38
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these job expectations created intolerable working conditions, such that a reasonable person in
Ames’s position would believe that she had no option but to quit. Completing work assignments
in a timely manner is not an unique job requirement; rather, it is central to the proper functioning
of any business, including Nationwide’s. See Nationwide’s App. at 48, p. 15:11–19. Indeed,
timely completion of the work tasks was a key characteristic of the position of loss mitigation
specialist, and was “a high priority” within the entire Loss Mitigation Department. See id. at 48,
p. 15:11–19. Thus, the mere expectation that Ames must timely perform her job duties, without
more, cannot convince a reasonable fact-finder that Ames endured intolerable work conditions
forcing her to resign.
ii.
Foreseeability of Ames’s resignation.
Ames has not put forth any evidence, other than her self-serving and unsupported
assertion, that the Nationwide Defendants intended for her to resign on July 19, 2010. See Pl.’s
Resistance Br. at 27 (“[The Nationwide Defendants intended for [Ames] to resign on July 19,
2010.” (emphasis in original)). Accordingly, on this record, the Court must conclude that no
reasonable fact-finder would determine that Defendants intended for Ames to quit. Thus, the
relevant inquiry becomes whether it was reasonably foreseeable to Defendants that Ames would
resign. The Court must answer this question in the negative.
No reasonable jury would agree that it was reasonably foreseeable to Defendants that the
alleged discriminatory comments and conduct of Neel, Brinks, Hallberg, and Baccam would
cause Ames to resign. As articulated in § III.B.2.a.i.a), the Court has determined that no
reasonable jury would find Hallberg’s and Baccam’s conduct even remotely objectionable.
Furthermore, for the reasons stated in that section, the Court finds that, although a reasonable
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fact-finder may conclude that Neel’s and Brinks’s comments were distasteful and inappropriate,
it was nevertheless not reasonably foreseeable that those comments would force Ames to resign.
Similarly, no reasonable jury would find it reasonably foreseeable that changing Ames’s
return-to-work date would promote her ultimate resignation. Defendants asked Ames to report
back to work earlier than expected because they had miscalculated the length of the maternity
leave to which she was entitled. Therefore, all that they expected of Ames was to comply with
the applicable FMLA provisions.
With respect to Ames’s assertion that she was not given access to a lactation room, the
Court notes that she had not filled out the required paperwork prior to reporting back to work on
July 19, 2010. Her failure to do so is the sole reason for not getting access to a lactation room on
that day. By not requesting such access, Ames failed to notify the Nationwide Defendants of her
intentions to continue breast-feeding past the expiration of her maternity leave. Accordingly, it
was not reasonably foreseeable that Ames would resign simply because she could not have
access to a lactation room on July 19, 2010, or because she had to wait three days before getting
access to such a room. The Court also finds that it was similarly not reasonably foreseeable that
Ames would resign because she had to use a wellness room to express milk until obtaining
access to a lactation room. Finally, for the reasons articulated in § III.B.2.a.i.d), a reasonable jury
would not find that it was reasonably foreseeable that Ames would resign because of the
expectation that she needed to maintain her work queue current.
iii.
Opportunity to respond.
To prevail on her constructive discharge claim, Ames must show that she refrained from
“assum[ing] the worst” and provided Defendants with an opportunity to address her grievances.
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See West, 54 F.3d at 498; Coffman v. Tracker Marine, L.P., 141 F.3d 1241, 1247 (8th Cir. 1998).
Ames argues, and the Court will assume for purposes of this Order, that she did so when she
“tried to discuss her feelings of despair with Ms. Neel and explore any options that might be
available to her to accommodate her need to provide breast milk for her son.” See Am. Compl. ¶
45; see also Pl.’s Resistance Br. at 29. It is undisputed that Ames did not lodge a complaint with
Nationwide’s Human Resources department, the Office of Ethics, or the Office of Associate
Relations.39 See Nationwide’s App. at 96:2–18. For this reason, the Court concludes, as a matter
of law, that Ames did not give Defendants an opportunity to respond to her grievances.
Sowell v. Alumina Ceramics, Inc. presents a similar to this case’s fact pattern. See 251
F.3d 678 (8th Cir. 2001). The plaintiff in Sowell, who had recently given birth to her child,
complained to her supervisor regarding the newly-instituted pager policy but “failed to avail
herself of the channels of communication provided by [the employer] to deal with such
complaints.” See Sowell, 251 F.3d at 385–86 (internal citation omitted). The Eighth Circuit
affirmed the district court’s grant of summary judgment for the employer, in part, due to Sowell’s
failure to utilize the grievance process established by the employer. See id.
39
Nationwide’s Compliance Statement reads as follows:
If you have reason to believe that Nationwide is not in compliance with the law,
contact your local HR professional, the Office of Ethics, or the Office of Associate
Relations to report the circumstances immediately. All complaints will be
investigated and handled in as confidential a manner as possible. You are assured
that there will be no retaliation against you for participating in an investigation or
making a complaint with the reasonable belief that non-compliance with the law has
occurred.
Nationwide’s App. at 105. Ames was undoubtedly aware of this policy. See id. at 195.
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Using similar reasoning, in Coffman, the Eighth Circuit reversed the jury’s finding that
the plaintiff had been constructively discharged. See Coffman, 141 F.3d at 1247–48. In
concluding that there was insufficient evidence to support such a finding, the court took into
account the fact that the plaintiff had available avenues for redress within the company but failed
to use them. See id. The court explained that the rationale behind requiring an employee to
attempt to resolve her grievances internally is that “society and the policies underlying Title VII
will be best served if, wherever possible, unlawful discrimination is attacked within the context
of existing employment relationships.” Id. at 1247 (internal citations and quotation marks
omitted).
The Court sees no reason to depart from Sowell’s and Coffman’s analyses. To the
contrary, the Court believes that Sowell and Coffman control the present case. It is undisputed
that Ames knew about Nationwide’s internal processes allowing any employee to launch a
complaint with the Human Resources department, the Office of Ethics, or the Office of Associate
Relations. It is also undisputed that she did not do so. Rather, similar to the Sowell plaintiff,
Ames only complained to Neel about not having immediate access to a lactation room, but did
not avail herself of the established channels of communication within Nationwide. Dissatisfied
with Neel’s alleged indifference, Ames felt that she had no alternative but to resign.
Relying on Sowell and Coffman, the Court holds that Ames’s claim of constructive
discharge must fail. Ames did not follow known internal grievance procedures to lodge her
complaint. Indeed, she did not even attempt to do so. Instead, she assumed the worst and
surmised that her only reasonable option was to tender her resignation. Under existing law,
Ames cannot prevail on her constructive discharge claim. Therefore, on this record, no
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reasonable jury could conclude that Ames has presented sufficient evidence to establish the
existence of a genuine issue of material fact precluding summary judgment for Defendants on her
constructive discharge claim.
b.
Inference of discrimination.40
Ames argues that “a reasonable jury could find that the circumstances surrounding
[Ames’s] constructive discharge permit an inference of discrimination.” Pl.’s Resistance Br. at
30. In support, Ames asserts that Neel’s and Brinks’s “barrage of comments . . . about her
pregnancy and upcoming maternity leave” made it clear to her that her pregnancy was viewed as
an inconvenience. Id. “[F]orcing [Ames] to come back to work earlier than she had expected”
was yet another attempt “to get her to quit.” Id. When Ames did not resign, Defendants made
sure that she would “resign the same morning she returned from maternity leave.” Id. (emphasis
in original). For reasons that follow, the Court finds that Ames has not established the existence
of circumstances surrounding her alleged constructive discharge, such that, when considered
“[T]he most straight-forward manner to give rise to an inference of sex discrimination” is
for Ames to compare her treatment to that of other similarly-situated employees outside the
protected class, or “comparators.” See Lewis v. Heartland Inns of Am., L.L.C., 585 F. Supp. 2d
1046, 1064 (S.D. Iowa 2008), rev’d on other grounds, 591 F.3d 1033 (8th Cir. 2010). In this
case, such “comparators” would be men with children, not women without children. See
Johnston v. U.S. Bank Nat’l Ass’n, No. 08-CV-0296, 2009 U.S. Dist. LEXIS 79125, at *31, 32
n.13 (D. Minn. Sept. 2, 2009). Since Ames has presented no evidence showing that Defendants
treated her comparators more favorably, “the Court will appl[y] the slightly more expansive
standard which allows [Ames] to meet the fourth prima facie element if she demonstrates that the
[constructive] discharge occurred under circumstances giving rise to an inference of
discrimination.” See Lewis, 585 F. Supp. 2d at 1063.
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together or in isolation, they warrant an inference of discrimination.
i.
Alleged discrimination.
The Court has already detailed and will not recount Defendants’ alleged discriminatory
comments and conduct. See supra § III.B.2.a.i.a. Rather, the Court finds it helpful to compare
the facts of the present case to previous cases where the facts were found sufficient to support a
discrimination claim.
In Walsh v. Nat’l Computer Sys., Inc., 332 F.3d 1150, 1160 (8th Cir. 2003), the plaintiff
sued her employer alleging gender discrimination on the basis of pregnancy. She claimed that
she had been discriminated against “not because she was a new parent, but because she [was] a
woman who had been pregnant [and] had taken a maternity leave.”41 Id. In concluding that there
was ample support for the jury’s finding that the plaintiff had been discriminated against on the
basis of her pregnancy, the Walsh court relied primarily on the following factors: (1) the plaintiff
was required to provide advance notice and documentation of her doctor’s appointments while
she was pregnant, and her co-workers did not have to do that, see id.; (2) the plaintiff was denied
the opportunity to change her schedule by leaving at 4:30 p.m., instead of 5:00 p.m., so that she
could pick up her son from daycare, even though some of her co-workers left work at 3:45 p.m.,
and her supervisor told her that she should probably look for another job, see id. at 1155; (3) the
plaintiff’s supervisor placed signs saying “Out—Sick Child” outside the plaintiff’s cubicle
Walsh also claimed that she had been discriminated against because she “might become
pregnant again.” See Walsh, 332 F.3d at 1160 (citing Krauel v. Iowa Methodist Med. Ctr., 95
F.3d 674, 680 (8th Cir. 1996) (holding that potential pregnancy was a sex-related medical
condition)). Ames has not presented any evidence that she had been discriminated against
because of her potential to become pregnant again. Accordingly, the Court will not examine this
issue.
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whenever she was caring for her sick son when such signs were not placed outside absent coworkers’ cubicles, see id.; and (4) the plaintiff was required to make up “every minute” that she
was absent due to doctor’s appointments for herself or her son when no other employees were
required to do so, see id.
Although the Court does not condone the discriminatory treatment that the Walsh plaintiff
had to endure, it did not rise to the level of the disparate treatment accorded the plaintiff in
Snyder v. Yellow Transportation, Inc., 321 F. Supp. 2d 1127 (E.D. Mo. 2004). While on
maternity leave, Snyder’s employment as a sales representative was terminated as a part of an
announced reduction in force. See id. The court denied the employer’s summary judgment
motion, holding that there was sufficient evidence in the record to support a finding that the
plaintiff’s “sex and recent pregnancy were factors considered in the decision to terminate her
employment.” Id. For instance, while she was on maternity leave, her employer permanently
realigned the territory lines assigning Snyder to an undesirable territory. See id. Furthermore,
one of Snyder’s managers had made derogatory remarks about female sales representatives
calling them “a pain in the ass.” See id. Another manager had stated that male account managers
were more capable than their female counterparts because women took time off to care for
children. See id. at 1132. These comments, however, were not the most egregious conduct that
Snyder’s superiors engaged in. Following her discharge, one of her former managers asked a
colleague of hers to fabricate a letter “for her file” outlining alleged customer complaints
regarding Snyder’s job performance. See Snyder, 321 F. Supp. 2d at 1132.
A “milder” case of pregnancy discrimination is Vosdingh v. Qwest Dex, Inc., No. 034884, 2005 U.S. Dist. LEXIS 6866 (D. Minn. Apr. 21, 2005). Although the comments directed
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at the plaintiff were not as harsh as those in Snyder, the court found that they were nevertheless
sufficient to give rise to an inference of discrimination. See Vosdingh, 2005 U.S. Dist. LEXIS
6866, at *60. When Nicholls, one of the Vosdingh plaintiffs, informed her manager that she was
pregnant for the second time, the manager asked her what she was going to do about her job. See
id. at *59. The manager also added that it was hard to come back to work after having a child
and that it was hard to keep “this job with two kids.” See id. When Vosdingh returned to work
and told her manager about her need to express milk, he made derogatory comments concerning
her decision to come back to work and to continue breast-feeding. See id. The manager also told
Vosdingh that he knew it was hard for her to come back to work and asked if there was any way
she could stay home. See id.
The Court finds that Dams v. City of Waverly, No. C04-2077, 2006 U.S. Dist. LEXIS
19237 (N.D. Iowa Mar. 2, 2006) is also useful in deciding whether Ames has presented evidence
sufficient to give rise to an inference of discrimination. After Dams became pregnant, she and
her supervisor, Buls, had several discussions regarding the length of her upcoming FMLA leave.
See Dams, 2006 U.S. Dist. LEXIS 19237, at *2. Buls took the position that eight, rather than ten,
weeks of maternity leave would be more appropriate. See id. at *2–3. The court held that the
inquiries as to the length of the leave and the statement that eight weeks of leave would be
preferable were “perfectly appropriate.” See id. at *14. Buls’s “attempt[] to condition granting
Dams’[s] unrelated vacation time on [her] taking only eight weeks of leave” was, however,
inappropriate and illegal. See id.
The inquiry into whether a plaintiff has presented evidence sufficient to give rise to an
inference of discrimination is case-specific. See McDonnell Douglas, 411 U.S. at 802 n.13 (“The
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facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof
required from respondent is not necessarily applicable in every respect to differing factual
situations.”). Thus, there are no particular comments or conduct that have to be present in a
given case to permit an inference of discrimination. See id. With this in mind, the Court views
Walsh’s, Snyder’s, Vosdingh’s, and Dams’s analyses as relevant and instructive, but in no way
dispositive to the present case. After analyzing the record, the Court does not agree that the
evidence in this case permits an inference of sex discrimination.
Assuming, arguendo, that Neel and Brinks made the comments at issue, the Court must
still conclude that they are insufficient to warrant an inference of discrimination.42 Unlike the
employer’s statements and actions in Walsh, Snyder, Vosdingh, and Dams, none of the comments
or conduct at issue here indicates Defendants’ negative attitude towards pregnancy or the
likelihood that Ames would suffer an adverse employment action as a result of her pregnancy or
maternity leave. Viewing the alleged discriminatory comments and conduct in the light most
favorable to Ames, the Court finds that, at most, they are marginally inappropriate. They are not,
however, indicative of Nationwide’s negative attitude towards pregnancy, the feminine gender,
The Court notes that all of the comments at issue occurred prior to Ames taking her
maternity leave, which began on April 12, 2010. See Nationwide’s App. at 88:17–93:23. Some
of them were made when Ames was pregnant with her first child in 2008–09. See id. at
91:19–92:6. Considering the lack of temporal proximity between these comments and the
alleged constructive discharge, the Court is less inclined to find a connection between the
comments and the adverse employment action. Cf. Quick v. Wal-Mart Stores, Inc., 441 F.3d 606,
610 (8th Cir. 2006) (“[W]e have been hesitant to find pretext or discrimination on temporal
proximity alone.” (internal citation and quotation marks omitted)); Snelson v. Mo. Transp.
Comm’n, No. 06-4073, 2009 U.S. Dist. LEXIS 14456, at *13–14 (W.D. Mo. Feb. 24, 2009)
(“[C]lose temporal proximity between an employer’s discovery of a protected characteristic and
an adverse employment action may, on rare occasions, suffice to create an inference of
discrimination.” (internal citation and quotation marks omitted)).
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or maternity leave.
Notably, unlike in Dams, here there is no evidence that Nationwide attempted to
discourage Ames from taking the entire FMLA leave to which she was entitled. To the contrary,
she was actually given an extra week of maternity leave following the birth of her second child.
It is also undisputed that Ames did not experience a disparate treatment resembling, even
remotely, the one that the Walsh plaintiff had to endure. Unlike the Snyder plaintiff, Nationwide
did not change the essential responsibilities of Ames’s position while she was on maternity leave
or upon her return to work. Most importantly, unlike the Vosdingh plaintiffs, Ames did not have
to put up with any derogatory comments on account of her pregnancy, maternity leave, or desire
to continue breast-feeding. Indeed, the evidence suggests that Defendants were quite
accommodating and understanding of Ames’s decisions to take all the FMLA leave to which she
was entitled and to continue breast-feeding after coming back to work. Furthermore, Defendants
did not, at any point, suggest or imply that Ames’s pregnancies, maternity leave, or desire to
continue breast-feeding somehow jeopardized her continued employment.
As with Neel’s and Brinks’s comments and conduct, the Court does not agree that the
remaining instances of alleged discrimination by Hallberg and Baccam are sufficient to give rise
to an inference of discrimination. Baccam’s failure to advise Ames on the specifics of
Nationwide’s lactation policy does not constitute discriminatory conduct. Indeed, Ames has not
presented any evidence that she informed Defendants of her plans to continue breast-feeding
following her return to work. At the same time, Ames admits that the lactation policy was
readily available to her on the company intranet and that she could have, but did not, ask Baccam
any questions regarding the policy. In light of these circumstances, the Court cannot conclude
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that Baccam engaged in any discriminatory behavior against Ames.
Similarly, the Court must conclude that Hallberg did not discriminate against Ames
either. Providing a letter explaining the procedure for obtaining access to a lactation room is not
an act of discrimination. When, on July 19, 2010, Ames found out that she would not be able to
use a lactation room on that day, Hallberg offered her use of one of the wellness rooms instead.
Hallberg also sent an email requesting that Ames’s request for access to a lactation room be
expedited. See Nationwide’s App. at 152. The Court cannot agree that these actions exhibit any
of the inherent characteristics of discriminatory behavior. To the contrary, Hallberg’s actions
portray her as someone who was exceptionally sensitive to Ames’s recent childbirth and breastfeeding concerns.
ii.
Revised return-to-work date.
Based on the analysis in § III.B.2.a.i.b, the Court concludes that changing the end date of
Ames’s maternity leave does not give rise to an inference of discrimination. Although asking
Ames to report back to work approximately two weeks earlier than she had expected came as a
surprise, it did not prejudice her rights under the FMLA. To the contrary, Defendants allowed
Ames to take an extra week of maternity leave over and above what she was entitled to under the
law. This is not the type of conduct giving rise to an inference of discrimination.
iii.
Events of July 19, 2010.
The Court hereby incorporates by reference the analysis in §§ III.B.2.a.i.c and
III.B.2.a.i.d. Ames asserts that, on July 19, 2010, two factors prompted her to believe that she
had no choice but to resign—not being able to use a lactation room to express milk and her
conversation with Brinks concerning the status of her work. With respect to the lactation room,
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the Court notes that Ames was denied access solely due to her failure to fill out the required
paperwork. While waiting for this paperwork to be processed, Ames was offered a wellness
room where she could express breast milk. Neither the lack of lactation room access nor the
need to use a wellness room to express milk belongs to the category of circumstances warranting
an inference of discrimination, however. For that matter, neither does the July 19, 2010
conversation between Brinks and Ames.
During that meeting, Brinks communicated Nationwide’s expectation that Ames must not
fall behind on her work tasks and could use overtime if she needed it. The Court cannot agree
that these were unreasonable expectations; to the contrary, timely completion of the work tasks
was central to the loss mitigation specialist position. See Nationwide’s App. at 48, p. 15:11–19.
When asked about the importance of “stay[ing] on top of the work” in the Loss Mitigation
Department, Brinks testified as follows:
Q.
A.
Q.
A.
Q.
A.
And is that because that was a busy department?
Yes.
And one where it was important to stay on top of the work?
Yes.
Would you say that was probably a No. 1 priority for that department?
It was a high priority.
Id. Furthermore, the record establishes that Ames was not treated differently than her co-workers
in the Loss Mitigation Department. See id. “It was a high priority [that everyone] stay[ed] on top
of the work.” Id. at 48, p. 15:14–19. Even if Nationwide’s expectations regarding Ames’s
timely completion of work tasks were unrealistic in light of her recent childbirth and three-month
maternity leave, that alone does not give rise to an inference of discrimination. See Standridge v.
Union Pac. R.R. Co., 479 F.3d 936, 944 (8th Cir. 2007) (“While an employer must treat its
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employees similarly, it does not have to treat employees in a protected class more favorably than
other employees.”).
IV. CONCLUSION
For the reasons discussed above, Defendants’ MSJ (Clerk’s No. 46) is hereby
GRANTED. In light of this ruling, the following motions are DENIED AS MOOT: (1) Motion
for Summary Judgment (Clerk’s No. 44); (2) Motion to Exclude Testimony of Plaintiff’s Experts
and Request for Oral Argument (Clerk’s No. 31); (3) Motion to Strike (Clerk’s No. 72); (4)
Motion to Strike Section II of Defendants’ Response to Plaintiff’s Statement of Additional
Material Facts (Clerk’s No. 75); (5) Motion to Continue the Trial and Request for Expedited
Ruling (Clerk’s No. 85); and (6) Plaintiff’s Motion in Limine (Clerk’s No. 87). Additionally, for
the reasons articulated in n.2 above, the Court DENIES Plaintiff’s Motion for Hearing/Oral
Argument (Clerk’s No. 69).
IT IS SO ORDERED.
Dated this ___16th___ day of October, 2012.
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