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Allison v. City of Farmington

United States District Court, D. New Mexico

June 11, 2019

BRITTANY ALLISON, Plaintiff,
v.
CITY OF FARMINGTON, FARMINGTON POLICE DEPARTMENT, STEVEN HEBBE, in his individual capacity, and BRIAN JOHNSTON, in his individual capacity, Defendants.

          MEMORANDUM OPINION AND ORDER

         This matter comes before the Court on Defendants City of Farmington, Farmington Police Department, Steven Hebbe, and Brian Johnston's (Defendants) Motion to Dismiss Count I and Count III of Plaintiff's Complaint, filed September 20, 2018 (Doc. 21), and Plaintiff Brittany Allison's Opposed Motion for Leave to Amend Complaint, filed October 9, 2018 (Doc. 27). Allison filed her response to Defendants' Motion on October 8, 2018, and did not file a reply in support of her Motion. (Docs. 26 and 40). Defendants filed their reply in support of their Motion on October 18, 2018, and their response to Plaintiff's Motion on October 22, 2018. (Docs. 29 and 32). Having considered the briefing, the record, and the applicable law, the Court grants Defendants' Motion to Dismiss Count I and Count III of Plaintiff's Complaint (Doc. 21) and denies Allison's Opposed Motion for Leave to Amend Complaint (Doc. 27).

         I. Background and Procedural History[1]

         The Farmington Police Department (FPD), a department of the City of Farmington (COF), hired Plaintiff Brittany Allison as a police officer on June 23, 2013. (Doc. 1) at ¶ 11. COF approved Allison for leave under the Family and Medical Leave Act (FMLA) on September 21, 2016, for leave effective from September 14, 2016, through November 27, 2016. (Id.) at ¶ 13. Allison took leave because she was pregnant and gave birth to her first child. (Id.)

         Allison returned to duty on November 28, 2016, and worked the swing shift. (Id.) at ¶ 14. She informed Tamara Smith, her supervisor, that she was breast-feeding and would need to adequate breaks to pump breast milk. (Id.) at ¶ 15. Smith afforded Allison adequate breaks and complied with her requests. (Id.)

         On January 8, 2017, Allison switched to day shift and Defendant Corporal Brian Johnston (Johnston) became her supervisor. (Id.) at ¶¶ 16-17. Johnston instituted a lunch break schedule that impacted Allison's ability to pump breast milk on her lunch break and during the work day. (Id.) at ¶¶ 17-18. Allison experienced multiple days during which she could not take a lunch break and would go ten (10) hours between pumping. (Id.) at ¶ 19.

         Allison and her child experienced myriad issues as a result of her inability to pump regularly. Allison complained to Johnston numerous times and specifically requested accommodations, but Johnston did not accommodate her situation. Allison addressed the issue with FPD Chief Steven Hebbe at a regularly scheduled meeting in June 2017. Chief Hebbe did not help.

         Allison does not allege any unpaid wages as a result of FPD's failure to accommodate her.

         Now, Allison brings nine claims for relief under various state and federal statutes. Relevant to these motions are Count I, Violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 207(r), and Count III, Violations of the New Mexico Breast Pump Use Act (NMBPUA), NMSA 2010 § 28-20-2.

         Defendants' Motion to Dismiss (Doc. 21) and Allison's Motion to Amend (Doc. 27) implicate the same statutory provisions. Defendants move to dismiss Counts I and III of Allison's Complaint for failure to state a claim upon which relief can be granted. Specifically, Defendants argue that Allison's failure to plead unpaid wages defeats her FLSA claim in Count I, and that Count III is not cognizable because the NMBPUA does not create a private cause of action. (Doc. 21).

         In response, Allison argues “that she be permitted to amend her Complaint to include [unpaid wages].” (Doc. 26) at 1. Allison further contends that she was “forced to use over 100 hours of leave and comp time in order to deal with the health problems” resulting from Defendants' failure to provide accommodations. (Id.) at 2. Allison did not plead any loss of leave or “comp” time in her Complaint. Allison's response does not address Defendants' argument that the NMBPUA does not create a private cause of action.

         In her Motion to Amend, Allison requests leave to amend her complaint to include allegations that she used “over 100 hours of accrued leave during the period of time she alleges Defendants violated her protected rights under Section 207(r) of the [FLSA] and the [NMBPUA].” (Doc. 27) at ¶ 5. Allison does contradict Defendants' argument that use of accrued leave time does not constitute unpaid wages or otherwise satisfy the elements of a FLSA claim under § 207(r), nor does Allison address the argument that the NMBPUA does not create or sustain a private cause of action.

         II. Standard of Review

         In deciding whether a claim is subject to a Rule 12(b)(6) dismissal for failure to state a claim upon which relief can be granted, the Court must accept all well-pleaded allegations as true and must view them in the light most favorable to the plaintiff. See Zinermon v. Burch, 494 U.S. 113, 118 (1990); Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984). Rule 12(b)(6) requires that a complaint set forth the grounds of a plaintiff's entitlement to relief through more than labels, conclusions, and a formulaic recitation of the elements of a cause of action. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege facts sufficient to state a plausible claim of relief. Id. at 570. A claim is facially plausible if the plaintiff pleads facts sufficient for the court to reasonably infer that the defendant is liable for the alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

         Under Rule 15(a)(2), “a party may amend its pleadings only with the opposing party's written consent or the court's leave.” As the Tenth Circuit has explained,

Rule 15(a) provides that leave to amend “shall be freely given when justice so requires.” Refusing leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure ...

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