United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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).
Background and Procedural History
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.)
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.)
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.
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.
does not allege any unpaid wages as a result of FPD's
failure to accommodate her.
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.
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).
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.
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.
Standard of Review
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).
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.”
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 ...