Petition for Writ of Certiorari — Bailie Bye, Petitioner v. MGM Resorts International, Inc., dba Beau Rivage Resort and Casino

APPENDIX

TABLE OF CONTENTS

Appendix A Opinion of the United States

Court of Appeals for the Fifth

Circuit (September 28, 2022) ......... App. 1a

Appendix B Memorandum and Order of the

United States District Court

for the Southern District of

Mississippi (December 16,

2021) ................................................. App. 24a

Appendix C Complaint of Bailie Bye filed in

the Circuit Court of Harrison

County, Mississippi

(November 19, 2019) ..................... App. 51a

Appendix D Fed. R. Civ. P. 84,

Form 13 (1940) ................................ App. 57a

Appendix E Fed. R. Civ. P. 84,

Form 14 (1940) ................................ App. 58a

-App. 1a-

APPENDIX A

United States Court of Appeals

Fifth Circuit

No. 22-60034

Bailie Bye,

Plaintiff– Appellant,

v.

MGM Resorts International, Incorporated,

doing business as Beau Rivage Resort and Casino,

Defendant–Appellee.

Filed: September 28, 2022

Appeal from the United States District Court for the

Southern District of Mississippi

Before: JONES, HO, and WILSON, Circuit Judges.

EDITH JONES, Circuit Judge:

Plaintiff is a working mother who brought suit against her

employer for pregnancy discrimination under Title VII,

constructive discharge, and creating a hostile work

environment. The district court granted summary

-App. 2ajudgment to her employer because she failed to create

triable fact issues. We concur. We also find no error or

abuse of discretion in the district court’s dismissal of her

belatedly-raised Fair Labor Standards Act (“FLSA”)

claim. Johnson v. City of Shelby, Miss., 574 U.S. 10, 11,

135 S. Ct. 346, 346 (2014) (per curiam) is inapposite. The

judgment is AFFIRMED.

BACKGROUND

Defendant Beau Rivage Resorts, LLC operates a

casino and resort facility in Biloxi, Mississippi. Plaintiff

Bailie Bye was employed at Beau Rivage as a server at

Defendant’s Terrace Café from January 7, 2015, until she

gave two weeks’ notice on June 28, 2019. She brought suit

against Beau Rivage alleging that, while she was

employed, she was subject to pregnancy and sex

discrimination, harassment, and constructive discharge in

violation of Title VII of the Civil Rights Act. Specifically,

she challenges the adequacy of her lactation breaks and

she alleges harassment from co-workers due to her

lactation breaks.

As a matter of course, servers at the Terrace Café

were provided a mandatory 30-minute break and two

additional optional 15-minute breaks during their shifts.

They would generally follow a breaker schedule to track

their breaks. For each shift, one of the servers would serve

as a “breaker,” who was responsible for relieving each

server for his or her break. The breaker would relieve

those who started earliest in the shift and rotate to those

who arrived later. The earliest arrivals would come in at

6am, the next round at 8am, and the last round at 1pm.

Servers were sometimes delayed, however, from taking

their breaks for any number of reasons including staffing,

shift changes, the number of patrons in the restaurant, or

customers lingering at the table. It was in the servers’ best

-App. 3ainterest to delay a break until a table’s entrée was served

in order to retain the tip from that table instead of having

the table (and the accompanying tip) transferred to the

breaker. This was especially true given the added

complication of having to involve a manager to close out a

check for a server who was on break.

Ms. Bye returned to work from maternity leave on

March 10, 2019. She worked the 8am-4pm shift. Upon her

return, she requested two 30 to 40-minute lactation

breaks. At first, she did not request that her breaks occur

at any particular time. Her request was approved, and she

received access to a locked lactation room. She typically

received her first break according to the breaker schedule

and her second break after the breaker relieved the other

servers. For just over two months, Ms. Bye took either

two 30-minute breaks or one hour-long break each full day

she worked.

On May 11, 2019, Ms. Bye sought a modified

accommodation, seeking two 45-minute breaks at specific

times—the first at 10am and the second at 1pm. She

included a medical certification from her physician, which

stated that “she must be able to pump breast milk twice

during her shift in 45 min increments, once at 10:00am and

at 1:00 pm.” Management was initially concerned that

scheduling breaks at specific times would be difficult due

to the unpredictable nature of the business and the need

for flexibility in order to maintain continuity in service.

Thus, in response to her request, Beau Rivage offered Ms.

Bye three options: (1) she could work the earlier 6am shift,

allowing her to take an earlier break at 8am; (2) she could

work as the breaker for as long as she needed to in order

to take her breaks as needed; or (3) she could break once

in the morning and once in the afternoon for 45 minutes as

close as possible to the times she requested, but not

-App. 4anecessarily at those exact times. Ms. Bye rejected all three

proposals.

Nevertheless, management granted Ms. Bye’s

request for an accommodation on June 14, 2019, indicating

that she could take her first break sometime between

10am and 10:30am and her second break sometime

between 1pm and 1:30pm. According to Beau Rivage, in

compliance with this new schedule, Ms. Bye’s manager

would speak with the breaker at the beginning of every

shift to ensure that Ms. Bye received her breaks at the

necessary time. When the breaker was unable to

accommodate Ms. Bye’s schedule, one of the managers

would step in and cover her tables or close her section so

she could go on her break. Ms. Bye contends, on the other

hand, that her breaks were “sporadic, sometimes not

occurring at all” and sometimes occurring “30 minutes to

over an hour past time.” She suggests that there were

multiple times when the breaker did not respect her

specific break time and that there was effectively “no

accommodation made for Ms. Bye to take breaks.”

Ms. Bye further alleges that her co-workers began to

harass her as a result of this new break schedule. She

describes various instances where coworkers got

frustrated with her for wanting to leave early or for taking

her breaks. She asserts that her co-workers did not want

to work with her and that they made negative comments

to her about her lactation breaks. She also contends that

her general manager was attempting to terminate her, but

her belief is based entirely on the fact that one of the

restaurant hostesses, Jennifer Cress, told Ms. Bye that

Jennifer knew about a group message among restaurant

workers where an unidentified person stated that the

general manager “was working on getting rid of

[Plaintiff].” Ms. Bye never saw this message herself, and

-App. 5aJennifer told her that she did not “know how true it is” or

“who it came from” because she was not a participant in

the group message.

Due to this alleged mistreatment, Ms. Bye contends

that she complained to human resources about not

receiving breaks as scheduled and the purported

harassment by her co-workers, but that nothing

ultimately came of her reports. She testified in her

deposition that, “[r]ight when [she] was finally starting to

actually get pump breaks at the times that [she] needed

them, the harassment had gotten overwhelming.” She

gave two weeks’ notice on June 28, 2019.

On May 29, 2019, Ms. Bye filed a charge of

discrimination with the Equal Employment Opportunity

Commission (“EEOC”), alleging harassment, sex

discrimination, and retaliation due to being “denied the

ability to take needed breaks and use a breast pump.” She

filed a second charge with the EEOC on August 2, 2019,

alleging retaliation and that she “was forced to quit [her]

job at the Beau Rivage due to them refusing to allow [her]

to take breaks to pump breast milk, along with

harassment from [her] coworkers.” The EEOC issued

right to sue letters for both charges on September 17,

2019.

On November 13, 2019, Ms. Bye filed suit against Beau

Rivage in the Circuit Court of Harrison County,

Mississippi, alleging pregnancy and sex discrimination,

harassment, and constructive discharge in violation of

Title VII. Defendants removed the case to federal court.

The district court granted summary judgment to Beau

Rivage, holding that Ms. Bye did not present sufficient

evidence to support a prima facie case of either disparate

treatment, harassment, or constructive discharge.

Regarding her allegations of inadequate lactation breaks,

-App. 6athe court further noted that, even if Ms. Bye could support

a prima facie case of disparate treatment, her claim would

still fail because Beau Rivage has articulated legitimate,

nondiscriminatory reasons for not giving her breaks at the

exact times requested.

Ms. Bye also invoked the FLSA for the first time in

response to the motion for summary judgment, and the

district court rejected the claim as untimely and not

properly before the court. Ms. Bye appealed.

STANDARD OF REVIEW

This court reviews a district court’s grant of summary

judgment de novo, “applying the same standard as the

district court.” Brandon v. Sage Corp., 808 F.3d 266, 269

(5th Cir. 2015) (citing Roberts v. City of Shreveport, 397

F.3d 287, 291 (5th Cir. 2005)). A party is entitled to

summary judgment “if the movant shows that there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” FED. R. CIV. P.

56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106

S. Ct. 2548, 2552 (1986). But “[o]nce the moving party has

initially shown that there is an absence of evidence to

support the non-moving party’s cause, the nonmovant

must come forward with specific facts showing a genuine

factual issue for trial.” U.S. ex rel. Farmer v. City of

Houston, 523 F.3d 333, 337 (5th Cir. 2008) (internal

quotation marks omitted).

DISCUSSION

Ms. Bye raises three primary arguments1 on appeal.

First, she challenges the district court’s conclusion that

she failed to make out a prima facie case of harassment or

hostile work environment. Second, she suggests that her

1

Ms. Bye does not challenge on appeal the district court’s

rejection of her disparate-treatment claims.

-App. 7aconstructive discharge claim should have made it to a jury.

Third, she contends that the district court erred by

dismissing her FLSA claim.

I. Harassment/Hostile Work Environment

The district court held that Ms. Bye failed to establish

a prima facie case of harassment or hostile work

environment. “Title VII does not prohibit all harassment.”

Gardner v. CLC of Pascagoula, L.L.C., 915 F.3d 320, 325

(5th Cir. 2019), as revised (Feb. 7, 2019). The “standards

for judging hostility are sufficiently demanding to ensure

that Title VII does not become a ‘general civility code.’”

Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.

Ct. 2275, 2283–84 (1998) (quoting Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75, 80, 118 S. Ct. 998, 1002

(1998)). These standards are intended to “filter out

complaints attacking the ordinary tribulations of the

workplace, such as the sporadic use of abusive language,

gender-related jokes, and occasional teasing.” Id. at 788,

118 S. Ct. at 2284 (internal quotation marks omitted).

“[A]llegations of unpleasant work meetings, verbal

reprimands, improper work requests, and unfair

treatment do not constitute actionable adverse

employment actions as discrimination or retaliation.”

Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818, 826

(5th Cir. 2019) (internal quotation marks omitted). Rather,

there must be “discriminatory intimidation, ridicule and

insult that is sufficiently severe or pervasive to alter the

conditions of the plaintiff’s employment and create an

abusive working environment.” Badgerow v. REJ

Properties, Inc., 974 F.3d 610, 617 (5th Cir. 2020) (internal

quotation marks and alterations omitted).

In order to establish a hostile work environment claim,

Ms. Bye had to demonstrate that

-App. 8a(1) the employee belonged to a protected

class; (2) the employee was subject to

unwelcome sexual harassment; (3) the

harassment was based on sex; (4) the

harassment affected a “term, condition, or

privilege” of employment; and (5) the

employer knew or should have known of the

harassment and failed to take prompt

remedial action.

Woods v. Delta Beverage Grp., Inc., 274 F.3d 295, 298

(5th Cir. 2001). The district court determined that, “at a

minimum the third and fourth elements are problematic”

for Ms. Bye. It concluded that she failed to produce “any

competent summary judgment evidence, other than her

own conclusory assertions or subjective beliefs,” that

indicated that the alleged harassment was related to her

lactation breaks. While she provided comments that her

co-workers made about her taking breaks to pump, she

has submitted no evidence showing the frequency of the

comments or who specifically made them. Additionally,

according to the district court, the conduct described by

Ms. Bye was not “sufficiently severe or pervasive,” as she

again failed to demonstrate that the alleged hostility was

more than “mere offensive utterances,” which are not

sufficient to establish a claim under Title VII.

We find nothing problematic about the district

court’s assessment of the evidence. Ms. Bye contends that

the district court inappropriately dismissed evidence that

“employees chose to and purposefully failed to break Ms.

Bye on time, harassed Ms. Bye by clapping when she had

to leave to go to the hospital for her child, [and] refus[ed]

to work with Ms. Bye.” But as the district court observed,

Ms. Bye provided no evidence regarding who said what or

how often, or how this treatment was related to her

-App. 9aneeding to take lactation breaks. All the court had was Ms.

Bye’s own account, unsupported by competent evidence.

And her subjective beliefs as to the motivation of others

are insufficient.

Additionally, the level of mistreatment she claims

occurred would not constitute harassment or a hostile

work environment under Title VII. For conduct to be

sufficiently severe or pervasive, it must be both

objectively and subjectively offensive. Badgerow, 974 F.3d

at 617–18. To determine whether the work environment is

objectively offensive, the court considers the totality of the

circumstances, including “(1) the frequency of the

discriminatory conduct; (2) its severity; (3) whether it is

physically threatening or humiliating, or merely an

offensive utterance; and (4) whether it interferes with an

employee’s work performance.” Id. at 618 (internal

quotation marks omitted). “No single factor is

determinative.” Id. (internal quotation marks omitted).

Ms. Bye’s allegations do not support a finding that the

conduct was objectively severe. At worst, her co-workers

were unkind to her, and she had difficulty working with

some of them. But not all troubled work relationships can

be remedied by federal law. Title VII is not a tool to exact

revenge on those with whom one does not get along. The

picture she paints is not of a hostile or abusive working

environment as evaluated by the totality of the

circumstances. Ms. Bye’s harassment claim fails as a

matter of law.

II. Constructive Discharge

For similar reasons, the court correctly granted

summary judgment on Ms. Bye’s constructive discharge

claim. She contends that Beau Rivage constructively

discharged her by not allowing her to take lactation

breaks as needed. “To prove a constructive discharge, a

-App. 10a‘plaintiff must establish that working conditions were so

intolerable that a reasonable employee would feel

compelled to resign.’” Brown v. Kinney Shoe Corp., 237

F.3d 556, 566 (5th Cir. 2001) (quoting Faruki v. Parsons,

123 F.3d 315, 319 (5th Cir. 1997)). This court has

considered the following events relevant in determining

whether a reasonable employee would feel compelled to

resign:

(1) demotion; (2) reduction in salary; (3)

reduction in job responsibilities; (4)

reassignment to menial or degrading

work; (5) badgering, harassment, or

humiliation by the employer calculated to

encourage the employee’s resignation; or

(6) offers of early retirement that would

make the employee worse off whether the

offer were accepted or not.

Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 991

(5th Cir. 2008) (quoting Aryain v. Wal–Mart Stores Tex.

LP, 534 F.3d 473, 481 (5th Cir. 2008)).

Ms. Bye seeks to rely upon the “badgering,

harassment, or humiliation” by other employees, but,

again, she has provided insufficient evidence that

conditions were so intolerable that she was compelled to

resign. “Constructive discharge requires a greater

degree of harassment than that required by a hostile

environment claim.” Brown, 237 F.3d at 566.

“Discrimination alone, without aggravating factors, is

insufficient for a claim of constructive discharge . . . .”

Id. On appeal, she faults the district court for allegedly

failing to consider the physical pain she endured

because she did not receive her lactation breaks on time.

And while there is no evidence to question that Ms. Bye

experienced discomfort, she concedes she received her

-App. 11alactation breaks most of the time, even if they were 30

minutes to an hour past the scheduled time. A

reasonable employee in Ms. Bye’s shoes would not have

considered these late lactation breaks so intolerable as

to compel resignation, especially given management’s

ongoing efforts to accommodate her requests. Ms. Bye’s

subjective disparagement of management’s efforts,

given much evidence of the difficulty of arranging

breaks exactly while also accommodating servers’ needs

to close out tables, is not sufficient to maintain her

constructive discharge claim.

III. FLSA

Finally, Ms. Bye challenges the district court’s

dismissal of her untimely raised FLSA claim. Ms. Bye

never alluded to an FLSA claim until she responded to

the defendant’s motion for summary judgment. The

district court determined that this belated reference

demonstrated the claim was not properly presented. See

Douglas v. Wells Fargo Bank, N.A., 992 F.3d 367, 373

(5th Cir. 2021). It is true that “[a] claim which is not

raised in the complaint but, rather, is raised only in

response to a motion for summary judgment is not

properly before the court.” Jackson v. Gautreaux, 3

F.4th 182, 188 (5th Cir. 2021) (quoting Cutrera v. Bd. of

Supervisors of La. State Univ., 429 F.3d 108, 113 (5th

Cir. 2005)). Indeed, this court has “repeatedly

emphasized this rule.” Id. at 188–89 (collecting cases).

Ms. Bye, however, relies on the Supreme Court’s

statement in Johnson v. City of Shelby, Miss., that

“[f]ederal pleading rules . . . do not countenance

dismissal of a complaint for imperfect statement of the

legal theory supporting the claim asserted.” 574 U.S. 10,

11, 135 S. Ct. 346, 346 (2014) (per curiam). In Johnson,

the plaintiffs’ failure to cite 42 U.S.C. § 1983 in their

-App. 12acomplaint was a hypertechnical error, given that the

only plausible basis for federal court jurisdiction there

was that the plaintiffs were terminated in violation of

their First Amendment rights by their public employer,

which could only proceed according to § 1983.2 Id. at 11,

135 S. Ct. 346–47. The Supreme Court cited Twombly3

and Iqbal4 in concluding that plaintiffs’ allegations

plainly “informed [the Defendant] of the factual basis

for the[] complaint,” as a result of which the plaintiffs

were “required to do no more to stave off threshold

dismissal for want of an adequate statement of their

claim.” Id. at 12, 135 S. Ct. at 347.

Johnson is inapposite here for various reasons. First,

the only claim considered by the Supreme Court was

plaintiffs’ sole claim under Section 1983, whereas here,

the plaintiff’s pleadings exclusively and repeatedly focus

on Title VII claims alone. In Johnson, the Court noted

that the plaintiffs’ recitation of facts left no room for

doubt as to the legal basis for their claim, see id.,

whereas here, the plaintiff, represented by highly

2

In support of this holding, the Court cited an employment

discrimination case for the proposition that “imposing a ‘heightened

pleading standard in employment discrimination cases conflicts with

Federal Rule of Civil Procedure 8(a)(2),’” thus suggesting that this

conclusion is not limited to the § 1983 context. Johnson, 574 U.S. at

11, 135 S. Ct. at 347 (quoting Swierkiewicz v. Sorema N. A., 534 U.S.

506, 512, 122 S. Ct. 992, 998 (2002)); see also, e.g., Melvin v. Barr

Roofing Co., 806 F. App’x 301, 308 (5th Cir. 2020) (unpublished)

(Johnson applied to hostile work environment claim); Thomas v. S.

Farm Bureau Life Ins. Co., 751 F. App’x 538, 540 n.9 (5th Cir. 2018)

(unpublished) (Johnson applied to wrongful discharge claim).

Unpublished cases from this court are, however, non-precedential.

3

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955

(2007).

4

Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009).

-App. 13acompetent counsel, was the mistress of her complaint,

and the several claims she pled all arose from Title VII.

Neither the defendant nor the district court were

required to read into the carefully stated complaint

(together with exhibits demonstrating exhaustion of

Title VII remedies) a wholly different claim that was not

pled. This is one reason why this court has “repeatedly

emphasized” that new claims need not be considered

when first raised in responses to summary judgment

motions.

Second, nothing in Johnson purports to supersede

the ordinary rules of case management prescribed by

the Federal Rules of Civil Procedure. To be clear, in

Johnson, the lower courts had granted and affirmed

summary judgment based on plaintiffs’ pleading

omission, but the Court’s opinion is premised on the

obviousness of Section 1983 as the vehicle under which

the claim had proceeded. Here, the progress of the case

was quite different. The district court explained that Ms.

Bye’s attempt to raise an FLSA claim occurred months

after the deadline for pleading amendments, well after

the discovery cutoff date, and within a month or two of

the trial setting. The court emphasized, correctly, how

the case had developed for nearly two years in light of

scheduling conferences and orders intended precisely to

shape the case for impending trial or other final

resolution.

Third, an FLSA claim for denial of lactation breaks

invokes different facts and remedies than Title VII, e.g.,

claims for failure to pay overtime and potential double

damages. See 29 U.S.C. § 207(r)(1)(A), Sec. 216.

Although Section 207(r) specifies that an employer has

no duty to compensate an employee for lactation breaks,

the Department of Labor has ruled that if the employee

-App. 14auses regular break time for lactation, she must be paid

in tandem with other employees.5 Nothing in plaintiff’s

pleading asserted any damage claim consistent with the

FLSA pregnancy provision. The district court noted this

deficiency, stating that no facts had been adduced that

as to unpaid minimum wage or overtime, nor did Ms.

Bye claim other FLSA-related damages, e.g., the

employer’s abuse of exceptions like sick leave. In fact,

because this provision has generally been enforced by

the Labor Department rather than individual plaintiffs,

the plaintiff’s belated attempt to inject an FLSA claim

here left the court and the defendants largely in the dark

about its potential reach and consequences. Contrary to

the dissent, this was a “new” claim.

Fourth, in connection with case management, we note

the district court considered sua sponte whether Ms.

Bye should be permitted to amend and add the FLSA

claim, but it rejected that option. The Supreme Court’s

Johnson opinion does not discuss the implications to be

drawn from Fed. R. Civ. Pro. 16, but it seems unlikely

that in the course of holding only that facts, rather than

legal theories, matter at the pleading stage, the Court

intended to upset the case management framework

articulated in Rule 16, titled “Pretrial Conferences;

Scheduling, Management.” Briefly summarizing its

detailed provisions (which are further usually

elaborated on by local district court rules), the purposes

of pretrial conferences include expediting disposition of

the action; establishing early and continuing judicial

control to avoid protracting the case; improving the

quality of trial through more thorough preparation; and

5

FAQs

pertinent

to

Section

207(r),

dol.gov/agencies/whd/nursingmothers/faq, visited 9/27/2022.

at

-App. 15afacilitating settlement. Rule 16(a). Further, a court

must ordinarily issue a scheduling order that, inter alia,

limits the time to amend the pleadings, complete

discovery, and file dispositive motions. Rule 16(b)(2),

(3)(A). Finally, among many case management aims

stated for pretrial conferences, the court “may”

“formulat[e] and simplify[] the issues, and eliminat[e]

frivolous claims and defenses.” Rule 16(c)(2)(A). Each of

these steps had occurred in this case, more than once.

Yet at no time during the two-year pendency of the case

had Ms. Bye alluded to an FLSA claim, and the parties

were on the verge of trial when the district court ruled

on defendant’s motion for summary judgment. The

court cited the length of her delay, the prejudice to the

defendant, and the burden on the court from a

continuance that would be required to address her new

claim. The belated FLSA claim was an abuse of the

opposing party and the court, and it was no abuse of

discretion for the district court to deny an amendment.

Moreover, Ms. Bye failed to address this aspect of the

court’s decision and has forfeited any challenge to it. In

re Southmark Corp., 163 F.3d 925, 934 n.12 (5th Cir.

1999). In essence, she concedes the impropriety of her

dilatory maneuver.

Fifth, our colleague cites two cases that allegedly

adopted a “broad” version of Johnson, but each is

plainly distinguishable. The Second Circuit in Quinones

reversed a Rule 12(b)(6) dismissal on the pleadings

where the district court incorrectly found no Sec 1981

discrimination claim had been pled––despite that the

plaintiff’s first paragraph stated, “[t]he claim for

discriminatory conduct based on Hispanic origin is

brought pursuant to 42 U.S.C. Sec. 1981.” Quinones v.

City of Binghamton, 997 F.3d 461, 468-69 (2d Cir. 2021).

-App. 16aPlaintiff’s complaint also alleged he sustained damages

because he was discriminated against on the basis of

Hispanic origin.” Id. Unlike this case, Quinones had not

proceeded through the court-supervised pretrial

management process to the end of discovery and verge

of trial before the “new” claim had been articulated. And

in Koger v. Dart, 950 F.3d 971, 974–75 (7th Cir. 2020),

the Seventh Circuit noted that the magistrate judge

herself had understood a prisoner plaintiff’s suit to

include a due process damage claim for the prison’s loss

of his books, even though the court later held the claim

was insufficiently pled. There was no surprise to the

defendants or the court about that claim which had been

maintained from the outset. And again, there is no

discussion of the impact of pretrial case management

upended by the plaintiff’s tactic of belated articulation.

We do not disagree with Johnson, nor with the sister

circuits’ decisions, but each case must be understood in

its specific procedural setting. The procedural setting of

the instant case likewise necessarily bears on the

latitude with which the “facts only” pleading rules apply

as a case moves further, via case management

principles, toward trial or definitive motion practice.

CONCLUSION

For the foregoing reasons, the judgment is

AFFIRMED.

JAMES C. HO, Circuit Judge, concurring in part and

dissenting in part:

The Fair Labor Standards Act is often understood as

helping workers by providing extra pay for extra hours

worked. But “that is not the only way—and perhaps not

even the best way—to understand the FLSA.” Hewitt v.

-App. 17aHelix Energy Sols. Grp., 15 F.4th 289, 303 (5th Cir.

2021) (en banc) (Ho, J., concurring), cert. granted,

_U.S._, 142 S. Ct. 2674 (2022). What drives many

Americans is not higher pay, but a better life. What gets

countless citizens out of bed each morning is not work,

but family. Many workers prefer “more free time over

more money,” because that means more opportunity to

“rest, recreate, and spend time with loved ones.” Id. In

sum, the FLSA helps many workers lead more joyous

and abundant lives by offering not greater

compensation, but better working conditions.

Consistent with these principles, Congress amended

the FLSA in 2010 to require employers to provide

nursing mothers reasonable unpaid break time to

express breast milk after the birth of a child. Pub. L. No.

111–148, § 4207, 124 Stat. 119, 577–78 (2010). As

amended, the Act requires employers to “provide . . . 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 “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.” 29 U.S.C. §

207(r)(1)(A)–(B).

The complaint in this case appears to plead all of the

facts necessary to support a claim that the Beau Rivage

Resort and Casino in Biloxi, Mississippi, violated Bailie

Bye’s rights to a reasonable break time for nursing as

required by the 2010 amendments to the FLSA.

Specifically, Bye’s complaint alleges that the lactation

breaks that the Beau Rivage afforded her “were

sporadic.” “The room was filthy, and [she] had to

-App. 18acomplain to make sure that the room was cleaned up so

that the room was sanitary to pump.” “Every time she

needed a break [she] was questioned or told that she had

to wait.” Her “breast became engorged” because she

“was not given regular breaks,” leading to “unbearable

pain at work.” She was “told that she could not take a

break until employees who had not taken their breaks

yet had taken their breaks.” As a result, she was only

given her break “hours past its required time.”

“Because of [her] pumps breaks,” “co-workers began to

harass” her. She was eventually “forced to leave her

employment because she could no longer endure the

harassment and physical pain from not being allowed to

take her pump breaks.”

These allegations would seem to be well sufficient to

state a claim under the FLSA, but for one problem: The

complaint does not mention the FLSA. It mentions only

Title VII of the Civil Rights Act of 1964.

The panel majority concludes that this omission is

fatal to the FLSA claim, and accordingly dismisses it

without addressing its merits.

I respect the majority’s reasoning. But I’m not sure

it’s consistent with governing Supreme Court

precedent.

I.

Reasonable minds can disagree over how much detail

a plaintiff should be required to include in a complaint—

and how best to strike the balance between ensuring fair

notice to defendants and avoiding unnecessary burden on

plaintiffs. In this case, Bye’s complaint mentions no

statutory basis for relief other than Title VII. So Beau

Rivage might reasonably infer that Bye deliberately

chose not to pursue relief under any provision of law

-App. 19aother than Title VII. Expressio unius usually means

exclusio alterius. See ante, at 11–12.

But the Supreme Court has made clear that plaintiffs

need only plead facts—not legal theories.

In Johnson v. City of Shelby, Mississippi, 574 U.S. 10

(2014) (per curiam), the Supreme Court summarily

reversed our court for mistakenly requiring plaintiffs to

plead legal theories as well as facts. The Court explained

that “[a] plaintiff . . . must plead facts sufficient to show

that her claim has substantive plausibility.” Id. at 12

(emphasis added). It concluded that the complaint in that

case alleged sufficient facts: “Petitioners stated simply,

concisely, and directly events that, they alleged, entitled

them to damages from the city.” Id.

And here’s the kicker: “Having informed the city of

the factual basis for their complaint, they were required

to do no more to stave off threshold dismissal for want of

an adequate statement of their claim.” Id. (emphasis

added).

So Johnson makes clear that “it is unnecessary to set

out a legal theory for the plaintiff’s claim for relief.” Id.

(quotations omitted, emphasis added).

Other circuits have interpreted Johnson similarly.

The Seventh Circuit summed it up this way: Under

Johnson, “[c]omplaints plead grievances, not legal

theories.” Koger v. Dart, 950 F.3d 971, 974 (7th Cir. 2020).

So it didn’t matter that a complaint “initially relied only

on the First Amendment”—the plaintiff could still invoke

the Due Process Clause “at later stages of the suit.” Id.

at 975. What’s more, the plaintiff “did not [even] need to

amend the complaint to do so.” Id. The Second Circuit

has taken the same approach. See Quinones v. City of

-App. 20aBinghamton, 997 F.3d 461, 468 (2nd Cir. 2021) (“[T]he

complaint identifies a single cause of action for retaliation

and does not similarly label a cause of action for

discrimination. But this failure is not fatal here.”)

(following Johnson).

To be sure, I can understand the temptation to

reconceptualize Johnson. After all, the plaintiffs there

plainly alleged a constitutional violation by the city—

their complaint just neglected to mention 42 U.S.C. §

1983. It would surely be “obvious” to any defendant—and

certainly to any municipal lawyer worth their salt—that

a complaint that alleges a constitutional violation by a

city surely means to seek relief under § 1983. See ante, at

12 (noting “the obviousness of Section 1983 as the vehicle

under which the claim had proceeded” in Johnson)

(emphasis added).

So it would have been easy for the Court to decide

Johnson based on the inherent obviousness of § 1983

claims, and nothing more.

But it didn’t. Johnson is premised not on § 1983, but

on general pleading principles.

II.

Before I conclude, I offer a few brief rebuttals to

various additional points made by the panel majority.

1. The majority tries to distinguish this case from

Johnson on the ground that “each case must be

understood in its specific procedural setting.” Ante, at 14.

As the majority explains, Bye did not refer to the

FLSA until “well after . . . discovery,” when she “first

raised [it] in responses to summary judgment motions.”

Id. at 12. Based on that procedural posture, the majority

concludes that allowing Bye’s claim to proceed at this

-App. 21astage would “supersede the ordinary rules of case

management” and “upset the case management

framework articulated in Rule 16.” Id. at 12, 13.

But Johnson involved precisely the same procedural

posture. Like Bye, the plaintiffs in Johnson did not

mention their statutory basis for relief until “after”

discovery, in response to a motion for summary

judgment. See Johnson v. City of Shelby, 743 F.3d 59, 61

(5th Cir. 2013), rev’d, 574 U.S. 10 (“Following discovery,

the City . . . filed a motion for summary judgment,” where

it “argued that it was entitled to judgment in its favor

because [the plaintiffs] did not invoke 42 U.S.C. § 1983 in

their complaint.”).

2. The majority offers another observation about the

procedural posture of this case: The court below

“considered sua sponte whether Ms. Bye should be

permitted to amend and add the FLSA claim, but it

rejected that option.” Ante, at 13. That is significant, the

majority says, because “it was no abuse of discretion for

the district court to deny an amendment”— and what’s

more, “Bye failed to address this aspect of the court’s

decision and has [thus] forfeited any challenge to it.” Id.

at 13–14. And in the absence of an amendment, the

majority contends, Bye’s FLSA claim conflicts with the

established principle that “new claims need not be

considered when first raised in responses to summary

judgment motions.” Id. at 11.

But Johnson makes clear that there was no need for

Bye to amend her complaint.

To begin with, no amendment was necessary because

the complaint is already sufficient. That’s the whole point

of Johnson: Facts are enough— and legal theory is not

required—to state a claim. See 574 U.S. at 12 (“no more”

-App. 22ais “required” than providing a “factual basis for the[]

complaint,” and “it is unnecessary to set out a legal

theory”) (quotations omitted).

What’s more, the Court noted that the plaintiffs there

should “be accorded an opportunity” to amend their

complaint—but only for purposes of “clarification,” not

legal mandate. See id. (“For clarification and to ward off

further insistence on a punctiliously stated ‘theory of the

pleadings,’ petitioners, on remand, should be accorded an

opportunity to add to their complaint a citation to §

1983.”); see also Koger, 950 F.3d at 975 (under Johnson,

plaintiff “did not need to amend the complaint”).

3. Finally, the majority observes that Bye failed to

allege damages in the form of either “unpaid minimum

wage or overtime,” as contemplated by 29 U.S.C. §

216(b). Ante, at 12. But that is not surprising. As the

Labor Department has noted, unpaid minimum wages

and overtime compensation are not the appropriate

remedies for violations of the FLSA nursing provision “in

most circumstances.”1 I have found no circuit opinions to

date that analyze what remedies are available under 29

1

See, e.g., Reasonable Break Time for Nursing Mothers, 75 Fed.

Reg. 80073-01, 80078 (Dec. 21, 2010) (“Section 7(r) of the FLSA does

not specify any penalties if an employer is found to have violated the

break time for nursing mothers requirement. In most instances, an

employee may only bring an action for unpaid minimum wages or

unpaid overtime compensation and an additional equal amount in

liquidated damages. 29 U.S.C. 216(b). Because employers are not

required to compensate employees for break time to express breast

milk, in most circumstances there will not be any unpaid minimum

wage or overtime compensation associated with the failure to provide

such breaks.”); see also 29 U.S.C. § 207(r)(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.”).

-App. 23aU.S.C. § 207(r)(2) for plaintiffs like Bye. But in all events,

the point is that the district court should have decided

Bye’s FLSA claim on the merits, rather than refuse to

consider her claim altogether.

***

I agree with the majority with respect to the Title VII

claim. I disagree as to the FLSA claim. Accordingly, I

concur in part and dissent in part.

-App. 24a-

APPENDIX B

In the United States District Court for the Southern

District of Mississippi, Southern Division

Civil No. 1:20cv3-HSO-RHWR

Bailie Bye,

Plaintiff,

v.

MGM Resorts International, Incorporated,

doing business as Beau Rivage Resort and Casino,

Defendant.

Filed: December 16, 2021

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANT’S MOTION [42] FOR SUMMARY JUDGMENT

BEFORE THE COURT is the Motion [42] for

Summary Judgment filed by Defendant MGM Resorts

International, Inc., doing business as Beau Rivage

Resort and Casino (“Defendant” or the “Beau Rivage”).

Plaintiff Bailie Bye (“Plaintiff” or “Bye”) has filed a

Response [47], and Defendant has filed a Reply [49].

After due consideration of the record, the Motion [42],

-App. 25arelated pleadings, and relevant legal authority, the Court

is of the opinion that Defendant’s Motion [42] for

Summary Judgment should be granted, and that

Plaintiff’s claims should be dismissed with prejudice.

I. BACKGROUND

A. Factual Background

1. Plaintiff’s employment with Beau Rivage

Defendant operates a casino and resort facility in

Biloxi, Mississippi. See Mitchell Decl. [42-1] at 1

(Declaration of Defendant’s Vice-President of Human

Resources Allison Smith Mitchell). This case arises out

of Plaintiff’s claims that, while employed with Defendant,

she was subjected to pregnancy and sex discrimination,

harassment, and constructive discharge in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000e, et seq. (“Title VII”). See Compl. [1-2] at 4–8.

Construing all facts in Plaintiff’s favor for purposes of

summary judgment, she began working at Defendant’s

facility as a server at its Terrace Café restaurant in

January 2015. See Pl.’s Dep. [42-2] at 44, 61–62. Terrace

Café operates on a 24-hour basis, with approximately

eight servers working during the day shift on staggered

schedules. See Cobb Decl. [42-6] at 1–2. When Plaintiff

first began her employment at the restaurant, she

typically worked the shift from 6:00 a.m. until 2:00 p.m.

See Pl.’s Dep. [42-2] at 81.

Plaintiff’s first child was born in November 2016, see

id. at 46, and when she returned from maternity leave in

2017, she began working the 8:00 a.m. until 4:00 p.m. day

shift due to childcare issues, see id. at 81–82. Plaintiff

testified that, while she was pregnant with her first child,

she informed Defendant that she wanted to breast feed

her new baby, but after she returned to work, see id. at

-App. 26a44, 46, she was forced to stop breast feeding because she

“wasn’t given pump breaks,” id. at 44, and was told that

she “was taking too long to pump,” id. at 45. It is

undisputed that Plaintiff did not file a charge of

discrimination with the Equal Employment Opportunity

Commission (“EEOC”) at that time. See id. at 48–49.

Following the birth of her second child in 2019,

Plaintiff returned to work at the Terrace Café in the

same server position, working the same shift, performing

the same job duties, and receiving the same or a greater

level of pay. See id. at 127–28. At the time Plaintiff

returned to work in 2019, the Collective Bargaining

Agreement between Defendant and the servers’ union

required servers to take one 30-minute break per shift.

See Pl.’s Dep. [42-2] at 100–01. The servers also were

given the option to take two additional 15-minute breaks,

for a total of 60 minutes of break time per shift, but they

were not required to do so. See id. Plaintiff explained in

her deposition that the Terrace Café utilized a server

known as a “breaker” who would relieve an employee

who went on break. See id. at 97.

Plaintiff testified that there were factors that could

sometimes arise that delayed servers’ breaks, including

staffing, shift changes, issues in the kitchen, the number

of patrons in the restaurant, party size at a table, or

customers staying longer at a table, see id. at 108, 121–

25, but that “[e]very situation is unique,” id. at 122. If

there needed to be a transfer of a check from one server

to a breaker, this could create a delay in starting a break

because a manager had to become involved. See id. at

122–23. Also, “if the breaker was finishing the table for

the server and the tip was going to the server that was on

break, then a manager would have to be involved when

-App. 27aclosing out, running the payment and everything in

between.” Id. at 123.

Plaintiff acknowledged in her deposition that for

purposes of retaining tips it would be in the server’s best

interest to delay a break and retain the table, instead of

turning it over to the breaker before the entrée was

served. This was so because it allowed a server to try to

close out as many tickets as possible before being

relieved by a breaker. See id. at 99–100, 125–26.

2. Plaintiff’s return from her second maternity leave

a. Plaintiff’s initial break schedule

Before Plaintiff returned from her second maternity

leave in 2019, she sent a text message to her manager,

Sarah Cormier (“Cormier”), inquiring if she could

receive two 30-minutes breaks, instead of one 30-minute

and two 15-minute breaks, in order to pump breast milk.

See id. at 115. Cormier responded, “you’ll get your

breaks. I’m in at 8:00 a.m., so we can talk about it then.”

Id.

When Plaintiff returned to work in March 2019, she

spoke with Cormier about “the best way to try to get

[Plaintiff’s] breaks in,” id. at 133, and completed a

lactation break information form requesting two 30- to 40minute breaks, see id. at 128-31. Plaintiff was approved to

take lactation breaks, see id. at 136, and received the door

code for a locked lactation room, see id. at 133, 173.

According to Plaintiff, she would typically begin work

around 8:00 a.m. and would receive her first break

pursuant to the breaker schedule. See id. at 137. After the

breaker had completed breaking all the sections in the

restaurant, Plaintiff would then get her second break. See

id. at 138–39.

-App. 28aDefendant tracked breaks using a team update sheet,

or what Plaintiff referred to as a breaker time log, which

she reviewed during her deposition. See id. at 142–47. The

log reflected that from March 10, 2019, through May 16,

2019, Plaintiff either took two 30-minute breaks or one

hour-long break each full day she worked. See id. at 145–

69. Plaintiff did not originally request breaks at a specific

time, see id. at 222–23, and she agreed that Defendant had

accommodated her requests during this time period, see

id. at 171.

b. Plaintiff’s request for accommodation

On May 11, 2019, Plaintiff submitted a request for

accommodation seeking two 45-minute breaks at specific

times, one at 10:00 a.m. and one at 1:00 p.m., due to her

pumping intervals, and access to the private room with

proper refrigeration for milk. See id. at 171–72, 177–78;

Request [42-5] at 25–27. Plaintiff also submitted a medical

certification from her physician, which stated that

Plaintiff “must be able to pump break milk . . . until breast

feeding (pumping milk) is no longer needed.” Cert. [42-5]

at 29; see Pl.’s Dep. [42-2] at 179. According to the

physician’s certification, “she must be able to pump breast

milk twice during her shift in 45 min increments, once at

10:00 am and at 1:00 pm,” Cert. [42-5] at 30 (emphasis in

original), in order “to prevent her milk build up and to

prevent pain for the patient,” id. at 31. Throughout the

month of May, Plaintiff continued to have lactation breaks

per her original schedule. See Pl.’s Dep. [42-2] at 184–90.

Marie Twiggs (“Twiggs”), who worked in Defendant’s

human resources department, communicated with

Plaintiff about her request to take longer breaks at

specific times, and on May 31, 2019, she sent

correspondence to Plaintiff’s doctor requesting additional

-App. 29ainformation. See id. at 181-84; Letter [42-5] at 33. Twiggs

asked the physician to clarify “if there is a medical reason

for the breaks to be at 10 am and 1 pm,” and “what the

maximum amount of time in between pumping should be

to avoid milk build-up and pain or discomfort?” Letter [425] at 33. It is unclear from the record what, if any, response

Defendant received from Plaintiff’s doctor.

Following discussions between Plaintiff and Twiggs,

Defendant offered three options: (1) working the earlier

6:00 a.m. shift, which would permit Plaintiff to break early

around 8:00 a.m.; (2) working the breaker schedule for as

long as Plaintiff needed to do so in order to be able to take

breaks as needed; or (3) breaking once in the morning and

once in the afternoon for 45 minutes as close as possible to

the times Plaintiff had requested, but not necessarily at

those exact times. See Pl.’s Dep. [42-2] at 190–94; Ex. [425] at 38. Plaintiff did not accept the first option due to day

care issues and the length of time between breaks, see Pl.’s

Dep. [42-2] at 192, and she did not accept the second option

because she “would not be making the same amount of

money,” id. at 193. Plaintiff also did not think that the

third option was a reasonable one for her because she felt

that, if she accepted it, “the times would constantly get

pushed further and further.” Id. at 194.

Eventually, Defendant granted Plaintiff’s request for

accommodation and sent her a letter to that effect dated

June 14, 2019. See id. at 195; Letter [42-5] at 39. Defendant

afforded Plaintiff two 45-minute breaks. See Pl.’s Dep. [422] at 195; Letter [42-5] at 39. The first break would start

sometime between 10:00 a.m. and 10:30 a.m., and the

second would begin between 1:00 p.m. and 1:30 p.m. See

Pl.’s Dep. [42-2] at 195–96; Letter [42-5] at 39. Defendant’s

letter informed Plaintiff that “[i]f you would like to

-App. 30arequest an additional accommodation in the future or

modification to your original accommodation, please

contact Employee Relations immediately to discuss your

options.” Letter [42-5] at 39.

Once this new break schedule began, manager Carol

Adams (“Adams”) would speak with the breaker at the

beginning of the shift about ensuring that Plaintiff was

receiving her breaks as close as possible to the times

Plaintiff had requested. See Pl.’s Dep. [42-2] at 217. At

times when the breaker was not ready or able to relieve

Plaintiff, one of the managers would allow her to take her

break and would watch over Plaintiff’s tables until the

breaker was available. See id. At other times, a manager

would completely close Plaintiff’s section so that she could

take her break. See id. Plaintiff nevertheless testified that

she believed that she was being discriminated against

because she felt like it was “a never-ending battle to get

the breaks at the times that [she] needed it.” Id. at 221;

see also id. at 217–24.1

c. Plaintiff’s allegations of harassment

Plaintiff asserts that, towards the end of her

employment with Defendant, coworkers on her shift

began to harass her. See id. at 224–25. When asked to

1

Plaintiff states in her Response to the Motion for Summary

Judgment that “Ms. Bye also detailed in her Interrogatory responses

some of the harassment she endured. For instance, her manager

Sarah Cormier told Ms. Bye point blank that lactation breaks need to

stop because the breaks are too much.” Resp. [47] at 13 (citing Ex. O).

However, that Response was to an interrogatory inquiring about

lactation breaks after Plaintiff’s first pregnancy, see Ex. O at 3-4,

which is not relevant here because Plaintiff’s claims related to

returning to work following maternity leave for her first child will be

dismissed based upon her failure to timely exhaust them.

-App. 31adescribe specific instances of harassment, Plaintiff

relayed an incident where there was an early out, or “EO,”

sheet available for employees wishing to leave work early

to sign because the restaurant was slowing down to the

point where it could afford to let one server leave early on

certain days. See id. at 225. On one occasion when

Plaintiff signed the EO sheet first, she claims that

some employees got upset that she had signed before a

specific server, Kristin. See id. at 225–26. The employees

allegedly threw the sheet away and made a new one

without Plaintiff’s name on it. See id. at 226. Because “[i]t

became a big fuss over who was going to get cut early,”

manager Lee McCoy (“McCoy”) decided that no one

would be able to leave early. Id.

Plaintiff asserts that other servers harassed her by not

wanting to “co-work on the floor” with her, meaning not

working in sections next to hers, not assisting with her

tables, and not sharing a credenza and computer with her.

See id. at 227–28, 247–48. Plaintiff also complained about

other servers’ “verbiage,” in that she believed they spoke

to her in a negative way and made comments to her, or to

others, about Plaintiff needing to take breaks to pump. See

id. at 230–39, 243–51.

Plaintiff also testified that she believed that her

general manager, Cormier, was trying to terminate her.

See id. at 251. The basis of this belief was that a restaurant

hostess, Jennifer Cress, told Plaintiff that another hostess

named Lady had informed Cress about a group message

among restaurant workers where an unidentified person

stated that Cormier “was working on getting rid of

[Plaintiff].” Id. at 252. In one audio recording Plaintiff has

submitted, she can be heard speaking with someone whom

she identifies in her Response [47] as Cress. See Ex. K

-App. 32a(conventionally file audio recording). Cress states on the

recording that Lady saw the group message from a

telephone number she did not recognize, but Cress herself

was not on the group message and did not see it. See id.2

Plaintiff never saw these purported messages, and her

knowledge of the statements by Cress is based on at least

third-hand information from an anonymous source. See

id.; Pl.’s Dep. [42-2] at 251–52. On the audio recording

itself, Plaintiff asks Cress to write a statement on the

matter, and Cress responds, “I can write something

saying that’s what I heard, but I don’t know how true it is.

I don’t know who it came from. I don’t have a name. I don’t

know nothing [sic].” Ex. K. Plaintiff agreed during her

deposition that she had no other evidence that Cormier

had actually made this comment. See Pl.’s Dep. [42-2] at

252. Nor did Plaintiff identify what reason Cormier would

have had for purportedly “working on getting rid of” her.

Id.

Plaintiff testified that she complained to human

resources about not receiving her breaks and being

harassed by the other employees and was directed to write

a statement describing what she felt had occurred. See id.

at 264–65. She “was told that investigations were being

done and that nothing came of it.” Id. According to the

Declaration of Allison Smith Mitchell (“Mitchell”), who is

Defendant’s Vice-President of Human Resources,

2

Plaintiff cites additional audio recordings, but it is sometimes

difficult to discern what is occurring during them and impossible to

tell who is speaking with Plaintiff. See Exs. K, N, P, Q, & R. No

transcripts of these conversations were provided, and it is unknown

when these conversations occurred. Having reviewed the audio

recordings, they are otherwise not sufficient to create a material fact

question as to any of Plaintiff’s claims.

-App. 33aPlaintiff complained to human resources on or about June

4, 2019, about not receiving breaks and experiencing

harassment. See Ex. [42-1] at 6. Mitchell avers that human

resources immediately investigated, but was unable to

substantiate that Plaintiff was being prohibited from

taking lactation breaks or that she was being harassed by

her co-workers. See id.

Plaintiff maintained in her deposition that, “[r]ight

when [she] was finally starting to actually get pump

breaks at the times that [she] needed them, the

harassment had gotten overwhelming.” Pl.’s Dep. [42-2] at

267. “As pump breaks were getting better, the co-workers

were getting worse on me,” and “[a]t that point the work

environment had gotten to a point where I felt there was

no return” with “[t]he stress of being hated every day that

I walked into work . . . .” Id. at 269. But when asked to give

specific examples of any comments or any other conduct

to substantiate these claims, Plaintiff said, “I can see it

and I can feel it; but to say the exact words without a

trigger to pull it, I cannot do that at this moment.” Id.

Plaintiff also referenced one occasion when she had to

leave work early to take her child to the hospital, and other

workers cheered that she was leaving. See id. at 270.

Ultimately, Plaintiff submitted a two-week notice of

her resignation on June 28, 2019, see id. at 261-62; Ex. [4719] at 1-2, and her last day of employment was in July

2019, see Ex. [42-5] at 4 (employee history).

B. Procedural History

Plaintiff filed a charge of discrimination with the

EEOC on or about May 29, 2019, alleging harassment, sex

discrimination upon her return from maternity leave in

March 2019 due to being “denied the ability to take needed

breaks and use a breast pump,” and retaliation. Ex. [1-2]

-App. 34aat 9. Plaintiff filed a second charge with the EEOC on or

about August 2, 2019, asserting retaliation and that she

“was forced to quit [her] job at the Beau Rivage due to

them refusing to allow [her] to take breaks to pump breast

milk, along with harassment from [her] coworkers.” Id. at

13.

On September 17, 2019, the EEOC issued Dismissals

and Notices of Suit Rights with respect to both charges.

See id. at 10, 14. Plaintiff filed suit against Defendant in

the Circuit Court of Harrison County, Mississippi, Second

Judicial District, on November 13, 2019, advancing claims

for pregnancy and sex discrimination, harassment, and

constructive discharge in violation of Title VII. See Compl.

[1-2] at 4–8.3 Defendant removed the case to this Court,

invoking federal question jurisdiction. See Notice [1] at 1–

3.

Defendant now seeks summary judgment on all of

Plaintiff’s claims. See Mot. [42]. Defendant argues that, to

the extent any of Plaintiff’s claims relate to her return to

work in February 2017 following the birth of her first

child, these claims are time-barred because Plaintiff did

not file her first EEOC charge until May 2019. Def.’s

Mem. [43] at 13–14. Defendant further asserts that

Plaintiff cannot support her claims for discriminatory

failure to accommodate, harassment or hostile work

environment, or constructive discharge. See id. at 14–24.

Plaintiff has filed a Response [47] in opposition to the

Motion [42], and Defendant has filed a Reply [49].

3

Although Plaintiff’s EEOC charges referenced retaliation, see

Ex. [1-2] at 9, 13, she did not assert retaliation in her Complaint, nor

has she briefed a retaliation claim in opposition to Defendant’s

request for summary judgment.

-App. 35aII. DISCUSSION

A. Relevant legal standards

1. Summary Judgement

Summary judgment is appropriate “if the movant

shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). If the movant carries this

burden, “the nonmovant must go beyond the pleadings

and designate specific facts showing that there is a

genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d

1069, 1075 (5th Cir. 1994) (en banc).

To rebut a properly supported motion for summary

judgment, the opposing party must show, with “significant

probative evidence,” that there exists a genuine issue of

material fact. Hamilton v. Segue Software, Inc., 232 F.3d

473, 477 (5th Cir. 2000) (per curiam) (quotation omitted).

“A genuine dispute of material fact means that evidence is

such that a reasonable jury could return a verdict for the

nonmoving party.” Royal v. CCC&R Tres Arboles, L.L.C.,

736 F.3d 396, 400 (5th Cir. 2013) (quotation omitted). In

deciding whether summary judgment is appropriate, the

Court views facts and inferences in the light most

favorable to the nonmoving party. See Certain

Underwriters at Lloyd’s, London v. Axon Pressure Prod.

Inc., 951 F.3d 248, 255 (5th Cir. 2020).

2. Title VII and the Pregnancy Discrimination Act

Title VII provides that it is an unlawful employment

practice

to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate

against any individual with respect to his

compensation, terms, conditions, or

-App. 36aprivileges of employment, because of such

individual’s . . . sex . . . .

42 U.S.C. § 2000e-2(a)(1). The reference to “terms,

conditions, or privileges of employment” includes that it is

unlawful for employers to require “people to work in a

discriminatorily hostile or abusive environment.” Gardner

v. CLC of Pascagoula, L.L.C., 915 F.3d 320, 325 (5th Cir.

2019) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21

(1993)).

Title VII, as amended by the PDA, 42 U.S.C. §

2000e(k), further states that

[t]he 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). The Fifth Circuit has held that

“lactation is a related medical condition of pregnancy for

purposes of the PDA,” E.E.O.C. v. Houston Funding II,

Ltd., 717 F.3d 425, 428 (5th Cir. 2013), and that

“discriminating against a woman who is lactating or

expressing breast milk violates Title VII and the PDA,”

id. at 430.

-App. 37aB. Analysis

1. Plaintiff’s claims related to her first child

The Complaint alleges that following the birth of her

first child, Plaintiff “experienced extreme difficulties in

being allowed time to breast pump while at work,” an that

“[t]he issues became so bad that Plaintiff had to quit

breast feeding and pumping and Plaintiff experienced

issues of post-partem [sic] depression.” Compl. [1-2] at 5.

Defendant argues that this claim should be dismissed

because Plaintiff did not timely file a charge of

discrimination with the EEOC with respect to any claims

relating to the birth of her first child. See Mem. [43] at 5,

13-14. Plaintiff did not address the exhaustion issue or

any issues related to her first child in her Response [47]

to Defendant’s Motion for Summary Judgment;

therefore, she is deemed to have abandoned any such

claims. See Smith v. Amedisys Inc., 298 F.3d 434, 451

(5th Cir. 2002).

In addition, before seeking judicial relief, Title VII

plaintiffs are required to first exhaust their

administrative remedies by filing a charge of

discrimination with the EEOC within 180 days of the

alleged discrimination. See Davis v. Fort Bend Cty., 893

F.3d 300, 303 (5th Cir. 2018), aff’d, 139 S. Ct. 1843 (2019)

(citing 42 U.S.C. § 2000e-5(e)(1)). “To exhaust, a plaintiff

must file a timely charge with the EEOC and then

receive a notice of the right to sue.” Ernst v. Methodist

Hosp. Sys., 1 F.4th 333, 337 (5th Cir. 2021). Although a

plaintiff’s failure to exhaust does not constitute a

jurisdictional bar, it is “a prudential prerequisite to suit.”

Davis, 893 F.3d at 305.

Plaintiff had her first child in November 2016, see

Pl.’s Dep. [42-2] at 46, and returned to work in 2017, see

-App. 38aid. at 81–82. Plaintiff acknowledged that she did not file

a charge of discrimination with the EEOC at that time,

and it is undisputed that she did not file an EEOC charge

until May 29, 2019. See id. at 48-49; Ex. [1-2] at 9. Because

Plaintiff did not timely exhaust any claims related to her

return to work in 2017 following the birth of her first

child, any such claims should be dismissed. See Ernst, 1

F.4th at 339.

2. Plaintiff’s failure-to-accommodate claims related to

her second child

Plaintiff maintains that upon her return to work

following the birth of her second child in 2019, Defendant

did not reasonably accommodate her request for

lactation breaks. See Compl. [1-2] at 5–7. Defendant

argues that Plaintiff cannot establish a claim for

discriminatory failure to accommodate. See Mem. [43] at

14–18. Plaintiff responds that while “[t]he law requires

actual compliance and reasonable lactation break

accommodations,” Resp. [47] at 1, Defendant made “no

real effort to accommodate lactation breaks,” id. at 19.

According to Plaintiff, “Defendant has not presented any

evidence to support its contention that the restaurant

was actually too busy to accommodate Ms. Bye’s breaks

on some days but not others.” Id. at 3.

In substance it appears that Plaintiff is asserting a

disparate-treatment claim for failure to accommodate

under Title VII, meaning that her “employer

intentionally treated a complainant less favorably than

employees with the ‘complainant’s qualifications’ but

outside the complainant’s protected class.” Young v.

United Parcel Serv., Inc., 575 U.S. 206, 135 S. Ct. 1338,

1345 (2015) (quoting McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973)). A plaintiff can prove disparate

-App. 39atreatment either with direct evidence, or with

circumstantial evidence under the burden-shifting

framework set forth in McDonnell Douglas, 411 U.S. 792

(1973). See id. Based upon the summary judgment

record, Plaintiff has presented no direct evidence of

discriminatory intent; therefore, she apparently relies

upon circumstantial evidence to support her failure-toaccommodate claim.

Under Title VII, a plaintiff may make out a prima

facie case of disparate treatment based upon

circumstantial evidence by showing that: (1) she

belonged to the protected class; (2) she sought

accommodation; (3) the employer did not accommodate

her; and (4) the employer accommodated others “similar

in their ability or inability to work.” Id. at 1354. If a

plaintiff makes such a showing, the “employer may then

seek to justify its refusal to accommodate the plaintiff by

relying on ‘legitimate, nondiscriminatory’ reasons for

denying her accommodation.”. (quoting McDonnell

Douglas, 411 U.S. at 802). If the employer satisfies this

burden of production, the burden shifts to the plaintiff to

demonstrate that the employer’s proffered reasons are in

fact a pretext for discrimination. See id.

In this case, Plaintiff has not presented sufficient

evidence to support either the third or fourth elements of

her prima facie case. First, the summary judgment

record demonstrates that Defendant did attempt to

accommodate Plaintiff, including increasing her two

normal 30-minute breaks to 45 minutes each when she

requested, in order to provide her more time to pump her

breastmilk. See Pl.’s Dep [42-2] at 171–72, 177–78;

Request [42-5] at 25–27. While Defendant could not offer

-App. 40aPlaintiff two breaks at exactly the times she had

requested due to the nature of the restaurant’s business

and the way it handled server breaks, the record reflects

that it offered her three reasonable, alternative options.

See Pl.’s Dep. [42-2] at 190–94; Ex. [42-5] at 38. This is

insufficient to show that Defendant failed to

accommodate her.

Even if Plaintiff could establish that Defendant failed

to accommodate her, she has presented no evidence to

support the fourth element of a prima facie case, that

Defendant accommodated others “similar in their ability

or inability to work.” Young, 135 S. Ct. at 1354. At no

point has Plaintiff pointed to any competent summary

judgment evidence, nor has she even alleged, that

Defendant treated any similarly situated server, or any

server at all, more favorably by allowing that server to

break at specific times. See id.; see also Compl. [1-2] at 4–

8; Pl.’s Resp. [47]. Plaintiff has simply not argued or

presented evidence to support the proposition that any

other employee was accommodated with the breaks that

she sought. In sum, there is simply no evidence of a

comparator in the record. Because Plaintiff has not

identified any comparators, she has not made out a prima

facie case of disparate treatment based upon failure to

accommodate, and Defendant’s request for summary

judgment as to this claim should be granted. See id.; see

also Santos v. Wincor Nixdorf, Inc., 778 F. App’x 300,

304 (5th Cir. 2019) (holding that plaintiff did not establish

her prima facie case on PDA claim and that summary

judgment was properly granted because plaintiff did not

present evidence that “a specific comparator or

comparators were treated more favorably than [the

plaintiff] under nearly identical circumstances”).

-App. 41aEven if Plaintiff could support a prima facie case of

disparate treatment under Title VII, Defendant has

articulated legitimate, nondiscriminatory reasons for not

giving her breaks at the exact times she desired.

Defendant increased Plaintiff’s breaks to 45 minutes

each, but it has presented evidence that permitting her

to take those breaks at exactly 10:00 a.m. and 1:00 p.m.

“would interfere with continuity in service and the

fairness and consistency provided with the Breaker

schedule.” Cobb Decl. [42-6] at 4. Management also

expressed concern that it would be difficult to allow

breaks precisely at the specified times because of

unpredictable circumstances that could

impact the ability to break at a specified

time, including, staffing levels, increases in

guest traffic, variances in the number of

tables being serviced during the particular

point in the day, variances in the number of

tables assigned to the Breaker during the

day, and kitchen disruptions.

Mitchell Decl. [42-1] at 5; see also Cobb Decl. [42-6] at 4.

Because Defendant has articulated legitimate,

nondiscriminatory reasons for its actions, Plaintiff must

demonstrate that the proffered reasons “were not its true

reasons, but were a pretext for discrimination.” Young,

135 S. Ct. at 1345 (quotation omitted). “[T]he plaintiff may

reach a jury on this issue by providing sufficient evidence

that the employer’s policies impose a significant burden on

pregnant workers, and that the employer’s ‘legitimate,

nondiscriminatory’ reasons are not sufficiently strong to

justify the burden, but rather—when considered along

with the burden imposed—give rise to an inference of

intentional discrimination.” Id. at 1354. Stated another

-App. 42away, “[t]he plaintiff can create a genuine issue of material

fact as to whether a significant burden exists by providing

evidence that the employer accommodates a large

percentage of nonpregnant workers while failing to

accommodate a large percentage of pregnant workers.”

Id.

Plaintiff has presented no such evidence, nor has she

otherwise presented sufficient evidence that casts doubt

on Defendant’s justification for its actions. See id.

Plaintiff’s mere subjective belief concerning pretext is

insufficient to rebut Defendant’s reasons, see Guarino v.

Potter, 102 F. App’x 865, 868–69 (5th Cir. 2004), and

summary judgment is warranted for this reason as well.4

3. Plaintiff’s hostile work environment

Plaintiff alleges “harassment from managers and coworkers because of her need for extra break time to pump

at work.” Compl. [1-2] at 6. At the outset, “Title VII does

not prohibit all harassment,” Gardner, 915 F.3d at 325,

and “does not set forth a general civility code for the

4

Plaintiff argues that Defendant did not raise the “business

necessity” defense in its Answer and that it presents no evidence of

“business necessity.” Resp. [47] at 1–2. Defendant did not use this

term in its Motion, and “business necessity” is a defense to a Title VII

disparate-impact claim, not a disparate-treatment claim. See 42

U.S.C. § 2000e- 2(k); Lewis v. City of Chicago, Ill., 560 U.S. 205, 213

(2010). Plaintiff has not advanced a disparate-impact claim. Even if

she had asserted such a claim, she has failed to present evidence

showing a disparate impact of Defendant’s break policies on a

protected group under Title VII. See Gonzales v. City of New

Braunfels, Tex., 176 F.3d 834, 839 n.26 (5th Cir. 1999). This is simply

not a disparate-impact case. See Barnes v. Yellow Freight Sys., Inc.,

778 F.2d 1096, 1100 (5th Cir. 1985); see also, e.g., Huston v. Tennessee

State Bd. of Regents, 83 F.3d 422, 1996 WL 196439, at *3 (6th Cir.

1996) (per curiam).

-App. 43aAmerican workplace,” Burlington N. & Santa Fe Ry. Co.

v. White, 548 U.S. 53, 68 (2006) (quotation omitted); see

also Newbury v. City of Windcrest, Texas, 991 F.3d 672,

676 (5th Cir. 2021). “[O]rdinary tribulations of the

workplace, such as the sporadic use of abusive language,

gender-related jokes, and occasional teasing” are not

actionable under a theory of hostile work environment,

and the United States Supreme Court has “made it clear

that conduct must be extreme to amount to a change in the

terms and conditions of employment. Faragher v. City of

Boca Raton, 524 U.S. 775, 788 (1998) (quotation omitted).

The Fifth Circuit has similarly held that “allegations

of unpleasant work meetings, verbal reprimands,

improper work requests, and unfair treatment do not

constitute actionable adverse employment actions as

discrimination or retaliation.” Welsh v. Fort Bend Indep.

Sch. Dist., 941 F.3d 818, 826 (5th Cir. 2019), cert. denied,

141 S. Ct. 160 (2020) (quotation omitted). Title VII is only

violated “[w]hen the workplace is permeated with

‘discriminatory intimidation, ridicule and insult’ that is

‘sufficiently severe or pervasive to alter the conditions of

the [plaintiff’s] employment and create an abusive

working environment . . . .’” Badgerow v. REJ Properties,

Inc., 974 F.3d 610, 617 (5th Cir. 2020) (quoting Harris, 510

U.S. at 21).

In order to establish a hostile work environment claim

involving co-workers, a plaintiff must show that: (1) she

belonged to a protected class; (2) she was subject to

unwelcome harassment; (3) the harassment was based on

the employee’s protected class; (4) the harassment

affected a term, condition, or privilege of employment; and

(5) the employer knew or should have known of the

harassment and failed to take prompt remedial action. See

-App. 44aid.; Woods v. Delta Beverage Grp., Inc., 274 F.3d 295, 298

(5th Cir. 2001). If the employee claims that a supervisor

with immediate or successively higher authority harassed

her, the employee need only satisfy the first four elements

of this test. Id. at 298 n.2 (citing Watts v. Kroger Co., 170

F.3d 505, 509 (5th Cir. 1999)).

Viewing the summary judgment evidence in the light

most favorable to Plaintiff, at a minimum the third and

fourth elements are problematic for her. Plaintiff has not

pointed to any competent summary judgment evidence,

other that her own conclusory assertions or subjective

beliefs, that tends to show that Defendant’s employees’ or

managers’ alleged harassment was related to her lactation

breaks. Although Plaintiff did testify in her deposition

about some comments that fellow servers made either to

her or about her within her hearing about her taking

breaks to pump and breastfeeding, no evidence has been

submitted as to the frequency of these comments or the

identity of the persons making them. See Pl.’s Dep. [42-2]

at 230–39, 243–51. Nor could Plaintiff identify any of the

particular comments any specific person had made. See id.

Plaintiff has also not pointed to any competent

summary judgment evidence that establishes the fourth

element, that the harassment was “sufficiently severe or

pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.”

West v. City of Houston, Texas, 960 F.3d 736, 741–42 (5th

Cir. 2020) (quotation omitted). To be “sufficiently severe

or pervasive,” the conduct must be both objectively and

subjectively offensive. Badgerow, 974 F.3d at 617. In

determining whether a plaintiff’s work environment is

objectively offensive, a court must consider the totality of

the circumstances, including “(1) the frequency of the

discriminatory conduct; (2) its severity; (3) whether it is

-App. 45aphysically threatening or humiliating, or merely an

offensive utterance; and (4) whether it interferes with an

employee’s work performance.” Id. at 618. “No single

factor is determinative.” Id.

Plaintiff attempts to establish objective offensiveness

by stating the following in her Response:

co-workers would clean out Ms. Bye’s

credenza, making it impossible for Ms. Bye to

work. Jennifer Cress told Ms. Bye that there

was group message where a manager was

trying to get rid of Ms. Bye. Co-workers

cheered and applauded when Ms. Bye had to

leave early to take her child to the hospital.

Another employee – Brett – tried to instigate

issues between Ms. Bye and other workers.

Breakers would chose [sic] to break other

employees before Ms. Bye, and in some cases

would just wait to break Ms. Bye [sic] until at

least 30 minutes past the designated lactation

break time. In addition, Ms. Bye would be in

physical pain because of engorgement, a fact

well known to everyone working with Ms. Bye.

To recap, employees openly discussed wanting

Ms. Bye to leave or be fired, managers were

rude/disrespectful/humiliating,

employees

would clean out supplies from Ms. Bye’s

section and refuse to work with Ms. Bye,

breakers would choose to break other people

and cause Ms. Bye’s breaks to be

unreasonably delayed, and co-workers

applauded and cheered when Ms. Bye had to

take her child to the hospital.

Resp. [47] at 19.

-App. 46aSuch vague and general allegations do not

sufficiently address the frequency of this alleged conduct,5

nor do they support a finding that the conduct was so

severe that it affected a term, condition, or privilege of

Plaintiff’s employment, or that it was physically

threatening or humiliating, as opposed to mere offensive

utterances. See Badgerow, 974 F.3d at 618.

In sum, Plaintiff has not demonstrated that she

suffered a hostile work environment in violation of Title

VII. The most she has shown is that “her colleagues were

sometimes offensive and boorish,” which is insufficient.

West, 960 F.3d at 743. Summary judgment is appropriate

on this claim.

4. Plaintiff’s constructive discharge claim

Plaintiff next alleges that Defendant constructively

discharged her when she was not permitted to take

lactation breaks as needed. See Compl. [1-2] at 7.

Defendant argues that summary judgment is appropriate

on this claim because Plaintiff’s allegations are insufficient

to raise a genuine issue of material fact that she was in fact

constructively discharged. See Mem. [43] at 21–22.

In determining whether a reasonable employee was

constructively discharged because she felt compelled to

resign, the Fifth Circuit considers the following events

relevant:

(1) demotion; (2) reduction in salary; (3)

reduction in job responsibilities; (4)

reassignment to menial or degrading work;

(5) reassignment to work under a younger

5

The cases Plaintiff cites in her Response address whether

isolated incidents may be sufficient, and her Response refers to a Ms.

Coleman and some deputy clerks. See Resp. [47] at 18 n.1. These

statements are not related to the present case.

-App. 47asupervisor; (6) badgering, harassment, or

humiliation by the employer calculated to

encourage the employee’s resignation; or

(7) offers of early retirement or continued

employment on terms less favorable than

the employee’s former status . . . .

Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir.

2001) (quotation omitted).

The only factor argued by Plaintiff is the alleged

harassment she suffered. See Resp. [47] at 17–20.

However, “[c]onstructive discharge requires a greater

degree of harassment than that required by a hostile

environment claim,” and “[d]iscrimination alone, without

aggravating factors, is insufficient for a claim of

constructive discharge . . . .” Id.

Plaintiff has not pointed to any evidence of badgering,

harassment, or humiliation by Defendant that was

calculated to encourage her to resign, see id., and the

Court has already determined that the harassment

Plaintiff claims she experienced was not sufficiently

severe or pervasive to support a hostile work environment

claim. Because Plaintiff cannot support a hostile work

environment claim, summary judgment is appropriate on

her constructive discharge claim.

5. Fair Labor Standards Act Claim

For the first time in response to Defendant’s Motion

for Summary Judgment, Plaintiff argues that Defendant

violated Section 7 of the Fair Labor Standards Act

(“FLSA”) by not accommodating her requests for breaks

to express breast milk. See Resp. [47] at 15–17 (citing 29

U.S.C. § 207(r)(1)(A)). Defendant objects to this “eleventh

hour” attempt to raise an FLSA claim, pointing out that

“[t]he law is well settled that a plaintiff may not rely on

-App. 48anew claims raised for the first time in a response to a

motion for summary judgment.” Reply [49] at 12 (citing

Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d

108, 113 (5th Cir. 2005)).

Where a new claim is raised for the first time in

response to a motion for summary judgment, the Fifth

Circuit has taken two different approaches: (1) a claim

which is not raised in the complaint, but raised only in

response to a motion for summary judgment, is treated as

not properly before the court; or (2) the district court

should treat the new claim as a request for leave to amend.

See Douglas v. Wells Fargo Bank, N.A., 992 F.3d 367, 373

(5th Cir. 2021). Plaintiff’s FLSA claim is not properly

before the Court, but even if it should be characterized as

a request for leave to amend, such request should be

denied.

A scheduling order may only be modified for good

cause and with the judge’s consent. See Fed. R. Civ. P.

16(b)(4). “Whether good cause exists depends on (1) the

explanation for the failure to timely move for leave to

amend; (2) the importance of the amendment; (3) potential

prejudice in allowing the amendment; and (4) the

availability of a continuance to cure such prejudice.” T.O.

v. Fort Bend Indep. Sch. Dist., 2 F.4th 407, 418 (5th Cir.

2021) (quotation omitted). If a plaintiff can demonstrate

good cause, then the more liberal standard of Rule 15(a)

applies to the request to amend. See id.

Plaintiff’s Response was filed over one year after the

deadline for amending pleadings. See Order [10] at 4

(setting a June 5, 2020, deadline). Plaintiff has not offered

any explanation for failing to timely move to amend, nor

has she explained the importance of the amendment. See

T.O., 2 F.4th at 418. Plaintiff has never pled damages

consistent with those permitted under the FLSA. See

-App. 49aCompl. [1-2]; 29 U.S.C. § 216(b) (providing that an

employer who violates § 207 is liable to an employee “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”); see

also Barbosa v. Boiler House LLC, No. 5:17-CV-340DAE, 2018 WL 8545855, at *6 (W.D. Tex. Feb. 23, 2018)

(finding on motions to dismiss that plaintiff's claim under

§ 207(r)(2) failed because she did not plausibly allege

compensable damages consistent with the remedies

permitted under § 216(b) for “unpaid minimum wages” or

“unpaid overtime compensation”) (quoting 29 U.S.C. §

216(b)). Nor has Plaintiff asserted that she suffered any

other type of compensable injury under the FLSA. See,

e.g., McCowan v. City of Philadelphia, No. CV 19-3326KSM, 2021 WL 84013, at *17 (E.D. Pa. Jan. 11, 2021)

(finding that plaintiff stated a plausible injury under §

207(r) when she was forced to use sick leave to pump).

This matter has been pending for nearly two years, is

set for trial in less than two months, and the deadline for

filing dispositive motions has long passed, such that

Defendant would be prejudiced if an amendment were

permitted at this very late date. See T.O., 2 F.4th at 418. A

continuance at this point would also be burdensome upon

Defendant and the Court, and Plaintiff has not requested

a continuance. See id. Based upon the record, the Court

finds no good cause to permit the amendment of Plaintiff’s

Complaint in opposition to Defendant’s summary

judgment. See Fed. R. Civ. P. 16(b)(4). Any purported

FLSA claim referenced in Plaintiff’s Response to

Defendant’s Motion for Summary Judgment is not

properly before the Court and will not be considered.

-App. 50aIII. CONCLUSION

To the extent the Court has not addressed any of the

parties’ remaining arguments, it has considered them and

determined that they would not alter the result. Summary

judgment is appropriate on all of Plaintiff’s claims.

IT

IS,

THEREFORE,

ORDERED

AND

ADJUDGED that, the Motion [42] for Summary

Judgment filed by Defendant MGM Resorts

International, Inc., doing business as Beau Rivage Resort

and Casino, is GRANTED, and Plaintiff Bailie Bye’s

claims are DISMISSED WITH PREJUDICE. A

separate final judgment will enter pursuant to Federal

Rule of Civil Procedure 58.

SO ORDERED AND ADJUDGED, this the 16th day

of December, 2021.

/s/Halil Suleyman Ozerden

UNITED STATES DISTRICT JUDGE

-App. 51a-

APPENDIX C

In the Circuit Court of Harrison County Mississippi,

Second Judicial District

Civil No. A2402-2019-169

Bailie Bye,

Plaintiff,

v.

MGM Resorts International, Incorporated,

doing business as Beau Rivage Resort and Casino,

Defendant.

Filed: November 13, 2021

JURY TRIAL DEMANDED

COMPLAINT

This is an action to recover actual and punitive

damages for pregnancy discrimination in violation of the

-App. 52aTitle VII of the Civil Rights Act of l964 and sex

discrimination. The following facts support the action:

1.

Plaintiff, Bailie Bye, is an adult resident citizen of

Harrison County, Mississippi who maybe contacted

through undersigned Counsel.

2.

Defendant, MGM RESORTS INTERNATIONAL,

INC, is a foreign corporation licensed and doing business

in Mississippi who may be served with process through its

registered agent Corporation Service Company at 7716

Old Canton Road, Suite C, Madison, Mississippi 39110.

3.

This court has concurrent jurisdiction under 28 U.S.C.

§ 1331 and civil rights jurisdiction under 28 § 1343, for a

cause of action arising under the Title VII of the Civil

Rights Act of 1964, as amended by the Civil Rights Act of

1991. Venue is proper, because Defendant's employed in

Plaintiff in Biloxi, Mississippi.

4.

Plaintiff has filed an EEOC charge attached here to as

Exhibit "A" and has received a Right-to-Sue letter

attached here to as Exhibit ''B". Plaintiff filed a second

EEOC charge attached here to as Exhibit "C" and has

received a Right-to-Sue letter attached here to as Exhibit

"D."

5.

Plaintiff was employed by the Defendant in Biloxi as a

waitress for several years. Plaintiff did an excellent job

and was even told by the casino CEO that she was an

excellent employee. Prior to having her second child, out

-App. 53aof town management would often sit in Plaintiff's section

at the restaurant because of the service the Plaintiff

provided.

6.

Following the birth of Plaintiffs first child while

working for the Defendant, Plaintiff experienced extreme

difficulties in being allowed time to breast pump while at

work. The issues became so bad that Plaintiff had to quit

breast feeding and pumping and Plaintiff experienced

issues of post-partem depression.

7.

Plaintiff's second child was born in early 2019 and

Plaintiff returned from maternity leave in March of 2019.

Again, Plaintiff attempted to pump so the she could breast

feed her new baby. Plaintiff again began to experience

difficulties from the Defendant in being allowed time at

work to pump. This time however, the Plaintiff had

learned that under Title VII and the pregnancy

discrimination act that she was entitled to pump at work

and Plaintiff went to her managers and human resources.

8.

Plaintiff was told that a room would be provided and

that she would be allowed breaks to pump at work. The

room was filthy, and Plaintiff had to complain to make

sure that the room was cleaned up so that the room was

sanitary to pump.

9.

Plaintiff began to experience harassment from

managers and co-workers because of her need for extra

break time to pump at work. Plaintiff's breaks were

sporadic and Plaintiff had to beg her managers to allow

-App. 54aher to take breaks. Every time she needed a break the

Plaintiff was questioned or told that she had to wait.

10.

Plaintiff's doctor even wrote a note stating that

Plaintiff needed breaks at designated times, which the

Defendant questioned and demanded more from the

doctors. When Plaintiff was not given regular breaks, her

breast became engorged from milk production and painful

to the point that Plaintiff would be in unbearable pain at

work.

11.

As an example, Plaintiff went to her managers because

she needed her pump break, which was well past due.

Plaintiff was told that she could not take a break until

employees who had not taken their breaks yet had taken

their breaks. Plaintiff was told that once the other

employees took breaks, she could then take her pump

break, which would have been hours past its required

time.

12.

Plaintiff came to learn that at least one manager was

trying to get Plaintiff terminated and that the manager

had a group text message with all the staff except for

Plaintiff. When this issue was brought up to the

Defendant, no action was taken.

13.

Because of the Plaintiffs pumps breaks and

complaints, co-workers began to harass Plaintiff. Plaintiff

was often left without supplies for her station, while all

other servers had their stations fully stocked. On one

occasion, Plaintiff had to leave early because her child had

to be taken to the hospital. As Plaintiff was leaving, co-

-App. 55aworkers began yelling and cheering that Plaintiff was

leaving early. Supervisors admitted that these co-workers

should not behave in such a manner, but no action was

taken by the Defendant.

14.

After Plaintiff made her initial Complaint to the

EEOC, supervisors and out of town Defendant employees

began to avoid sitting in Plaintiff's section. Supervisors

began to avoid Plaintiff and co-workers began to harass

and mistreat Plaintiff even more than before. The stress

and anxiety became unbearable. Plaintiff continued to

endure physical pain from not being allowed to take pump

breaks. Plaintiff was forced to leave her employment

because she could no longer endure the harassment and

physical pain from not being allowed to take her pump

breaks.

15.

The acts and omissions of the Defendant was in

violation of Title VII. Plaintiff lost her employment

because of her pregnancy and being female. Plaintiff's

constructive discharge was a direct and proximate result

of the Defendant's acts and omissions.

16.

Plaintiff is entitled to actual damages for mental

anxiety and stress and lost income. Defendant's actions

are outrageous such that punitive damages are due.

PRAYER FOR RELIEF

Plaintiff prays for actual, compensatory, special and

punitive damages in the amount to be determined by a

jury, reinstatement, and for reasonable attorney’s fees.

Dated this 11th day of November, 2019.

-App. 56a-

Respectfully submitted,

BAILIE BYE

PLAINTIFF

DANIEL M. WAIDE,

MSB #103543

Johnson, Ratliff & Waide, PLLC

1300 Hardy Street

Hattiesburg, MS 39401

T: (601) 582-4553

F: (601) 582)-4556

dwaide@jhrlaw.net

-App. 57a-

APPENDIX D

Fed. R. Civ. P. 84, Form 13 (1940)

-App. 58a-

APPENDIX E

Fed. R. Civ. P. 84, Form 14 (1940)