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3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE 7 MARLENA ROSS, 8 Plaintiff, 9 v. C19-1676 TSZ 10 PACIFIC MARITIME MINUTE ORDER ASSOCIATION, et al., 11 Defendants. 12
13 The following Minute Order is made by direction of the Court, the Honorable Thomas S. Zilly, United States District Judge: 14 (1) To the extent Plaintiff’s Motion for Partial Summary Judgment, docket no. 61, or any opposition contains a motion to amend the Second Amended Complaint to 15 include a disability claim, that motion is DENIED. Plaintiff had three prior opportunities to properly amend her complaint to include such a claim yet did not do so. Plaintiff’s 16 contention that “this claim is being raised and litigated sufficiently now by consent” is contradicted by the record. Plaintiff’s Reply, docket no. 88-1 at 7. Defendants 17 strenuously object to any new disability accommodation claim as an impermissible “pivot.” See PMA’s Opposition, docket no. 73 at 20. Any stand alone disability claim is 18 not properly before the Court. 19 (2) SSA’s Motion for Partial Summary Judgment, docket no. 44, is DENIED in part and DEFERRED in part as follows: 20 (a) SSA’s motion is DENIED as to the Washington Healthy Starts Act 21 (“HSA”), RCW 43.10, et seq., portion. The Court has already ruled that the HSA included a right to lactation accommodations when it went into effect in July 2017. 22 See docket no. 37 at 3. Whether SSA was responsible for a delay in the provision 1 of lactation accommodations or the inadequate provision of those accommodations in violation of the HSA (under Claim III) involves disputed issues of material fact. 2 Compare Bohm Decl., docket no. 86 at ¶ 3 and Ex. 3 to Lentini Decl., docket no. 45-3 at 25-26 with Ex. 9 to Heidelberg Decl., docket no. 62-1 at 71. 3 (b) SSA’s motion is DENIED as to the Fair Labor Standards Act 4 (“FLSA”) portion. Plaintiff asserts a private right of action under the FLSA. 29 U.S.C. § 216(b) (“Any employer who violates the provisions of section . . . 207 of 5 this title shall be liable to the employee … affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and 6 in an additional equal amount as liquidated damages.”); Lico v. TD Bank, 2015 WL 3467159, at *3 (E.D.N.Y. June 1, 2015) (“[T]he penalty provision explicitly 7 provides a private right of action for all violations of Section Seven, which obviously includes § 207(r). The entitlement to a private right of action could not 8 be more clearly stated in the provision”). Whether SSA retaliated against Ross in violation of the FLSA involves disputed issues of material fact. 9 (c) The Court’s ruling on the Hostile Work Environment (under Claim II) and Negligent and Intentional Infliction of Emotional Distress (under Claims 10 IV & V) portions of the Motion is DEFERRED. 11 (3) PMA’s Renewed Threshold Motion for Summary Judgment, docket no. 51, is DENIED as follows: 12 (a) PMA contends that it is not Ross’ employer pursuant to the FLSA. 13 The FLSA defines employer as “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). This 14 definition is “given an expansive interpretation in order to effectuate the FLSA’s broad remedial purposes.” Bonnette v. Cal. Health & Welf. Agency, 704 F.2d 15 1465, 1469 (9th Cir. 1983), overruled on other grounds by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). Whether an employer-employee 16 relationship exists under the FLSA does not depend on “isolated factors but rather upon the circumstances of the whole activity” and whether an employer exerted 17 control over an employee. Id. This determination focuses on whether the alleged employer (1) had the power to hire and fire the employees; (2) supervised and 18 controlled employee work schedules or conditions of employment; (3) determined the rate and method of pay; and (4) maintained employment records. Id. at 1470. 19 The Department of Labor essentially adopted the Bonnette factors at 29 C.F.R. § 791.2. 20 PMA’s status as Ross’ joint employer is a question of law determined by the 21 Court. Bonnette, 704 F.2d at 1469. To meet this test, an “employer” need not meet every factor, rather, the potential joint employer must “actually exercise-- 22 1 directly or indirectly--one or more of these indicia of control to be jointly liable under the Act.” See 85 Fed. Reg. 2820, 2821 (Jan. 16, 2020). 2 (b) The Court previously concluded that there were material issues of 3 fact precluding the Court from determining whether, as a matter of law, PMA could be responsible as Ross’ joint employer pursuant to the FLSA.1 Several 4 entities played a necessary role in processing Ross’ request for a lactation accommodation, which was required before she could return to work. Ross’ 5 request began “exclusively and appropriately only with her union,” Local 19. PMA’s Response to Plaintiff’s Motion, docket no. 73 at 11. The JPLRC, of which 6 PMA and Local 19 are a part, then “review[ed] and decide[d] upon” Ross’ temporary accommodation request. Ex. 2 to Second Nziramasanga Decl., docket 7 no. 93; Pick Decl., docket no. 19 at ¶¶ 5, 12. PMA, as the employer representative of the JPLRC, then processed and communicated the request to the employer. Ex. 8 1 to Second Heidelberg Decl., docket no. 81 at 6-7; Ex. 2 to Second Heidelberg Decl., docket no. 81 at 10-11. Ross therefore could not work unless and until 9 Local 19, PMA, and the JPLRC each acted on her lactation room accommodation request. Each entity “supervised and controlled [Ross’] work schedule[] or 10 conditions of employment.” Bonnette, 704 F.2d at 1470. PMA’s Threshold Motion is therefore DENIED as to the FLSA claim. Now, with the benefit of a 11 developed record and after considering all the briefing on the issue, the Court, sua sponte, finds and concludes as a matter of law that PMA is an employer pursuant 12 to the FLSA for the purpose of processing Ross’ lactation accommodation request because PMA jointly exercised control over conditions of Ross’ employment 13 before she set foot on the docks. (c) PMA also contends that it is not Ross’ employer pursuant to the 14 WLAD. In support of this argument, PMA primarily relies on Anderson v. Pacific Maritime Ass’n, 336 F.3d 924 (9th Cir. 2003), in which the Ninth Circuit found 15 that PMA was not an employer pursuant to Title VII and the WLAD for events that occurred on PMA-member docks. Anderson is materially distinguishable 16 from this case. The Anderson court held that PMA had “no direct role” in the allegedly racially hostile work environment on its member’s docks. Id. at 926. 17
18 1 PMA contends that it is not Ross’ employer because it does not have the power to hire 19 and fire dockworkers (Weber Decl., docket no. 54 at ¶ 7), does not supervise dockworkers (id. at ¶¶ 7, 17), and assists in negotiating dockworkers’ pay rates merely as an intermediary (id. at ¶ 5). 20 PMA also contends that, while it does keep employee data for its member companies, that factor is not dispositive on its own. Ross’ allegations regarding PMA, JPLRC, and Local 19, relate, however, to the work conditions, hiring, and dispatching before she even set foot in an SSA 21 terminal and not to the lactation accommodations at SSA’s terminals.
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3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE 7 MARLENA ROSS, 8 Plaintiff, 9 v. C19-1676 TSZ 10 PACIFIC MARITIME MINUTE ORDER ASSOCIATION, et al., 11 Defendants. 12
13 The following Minute Order is made by direction of the Court, the Honorable Thomas S. Zilly, United States District Judge: 14 (1) To the extent Plaintiff’s Motion for Partial Summary Judgment, docket no. 61, or any opposition contains a motion to amend the Second Amended Complaint to 15 include a disability claim, that motion is DENIED. Plaintiff had three prior opportunities to properly amend her complaint to include such a claim yet did not do so. Plaintiff’s 16 contention that “this claim is being raised and litigated sufficiently now by consent” is contradicted by the record. Plaintiff’s Reply, docket no. 88-1 at 7. Defendants 17 strenuously object to any new disability accommodation claim as an impermissible “pivot.” See PMA’s Opposition, docket no. 73 at 20. Any stand alone disability claim is 18 not properly before the Court. 19 (2) SSA’s Motion for Partial Summary Judgment, docket no. 44, is DENIED in part and DEFERRED in part as follows: 20 (a) SSA’s motion is DENIED as to the Washington Healthy Starts Act 21 (“HSA”), RCW 43.10, et seq., portion. The Court has already ruled that the HSA included a right to lactation accommodations when it went into effect in July 2017. 22 See docket no. 37 at 3. Whether SSA was responsible for a delay in the provision 1 of lactation accommodations or the inadequate provision of those accommodations in violation of the HSA (under Claim III) involves disputed issues of material fact. 2 Compare Bohm Decl., docket no. 86 at ¶ 3 and Ex. 3 to Lentini Decl., docket no. 45-3 at 25-26 with Ex. 9 to Heidelberg Decl., docket no. 62-1 at 71. 3 (b) SSA’s motion is DENIED as to the Fair Labor Standards Act 4 (“FLSA”) portion. Plaintiff asserts a private right of action under the FLSA. 29 U.S.C. § 216(b) (“Any employer who violates the provisions of section . . . 207 of 5 this title shall be liable to the employee … affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and 6 in an additional equal amount as liquidated damages.”); Lico v. TD Bank, 2015 WL 3467159, at *3 (E.D.N.Y. June 1, 2015) (“[T]he penalty provision explicitly 7 provides a private right of action for all violations of Section Seven, which obviously includes § 207(r). The entitlement to a private right of action could not 8 be more clearly stated in the provision”). Whether SSA retaliated against Ross in violation of the FLSA involves disputed issues of material fact. 9 (c) The Court’s ruling on the Hostile Work Environment (under Claim II) and Negligent and Intentional Infliction of Emotional Distress (under Claims 10 IV & V) portions of the Motion is DEFERRED. 11 (3) PMA’s Renewed Threshold Motion for Summary Judgment, docket no. 51, is DENIED as follows: 12 (a) PMA contends that it is not Ross’ employer pursuant to the FLSA. 13 The FLSA defines employer as “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). This 14 definition is “given an expansive interpretation in order to effectuate the FLSA’s broad remedial purposes.” Bonnette v. Cal. Health & Welf. Agency, 704 F.2d 15 1465, 1469 (9th Cir. 1983), overruled on other grounds by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). Whether an employer-employee 16 relationship exists under the FLSA does not depend on “isolated factors but rather upon the circumstances of the whole activity” and whether an employer exerted 17 control over an employee. Id. This determination focuses on whether the alleged employer (1) had the power to hire and fire the employees; (2) supervised and 18 controlled employee work schedules or conditions of employment; (3) determined the rate and method of pay; and (4) maintained employment records. Id. at 1470. 19 The Department of Labor essentially adopted the Bonnette factors at 29 C.F.R. § 791.2. 20 PMA’s status as Ross’ joint employer is a question of law determined by the 21 Court. Bonnette, 704 F.2d at 1469. To meet this test, an “employer” need not meet every factor, rather, the potential joint employer must “actually exercise-- 22 1 directly or indirectly--one or more of these indicia of control to be jointly liable under the Act.” See 85 Fed. Reg. 2820, 2821 (Jan. 16, 2020). 2 (b) The Court previously concluded that there were material issues of 3 fact precluding the Court from determining whether, as a matter of law, PMA could be responsible as Ross’ joint employer pursuant to the FLSA.1 Several 4 entities played a necessary role in processing Ross’ request for a lactation accommodation, which was required before she could return to work. Ross’ 5 request began “exclusively and appropriately only with her union,” Local 19. PMA’s Response to Plaintiff’s Motion, docket no. 73 at 11. The JPLRC, of which 6 PMA and Local 19 are a part, then “review[ed] and decide[d] upon” Ross’ temporary accommodation request. Ex. 2 to Second Nziramasanga Decl., docket 7 no. 93; Pick Decl., docket no. 19 at ¶¶ 5, 12. PMA, as the employer representative of the JPLRC, then processed and communicated the request to the employer. Ex. 8 1 to Second Heidelberg Decl., docket no. 81 at 6-7; Ex. 2 to Second Heidelberg Decl., docket no. 81 at 10-11. Ross therefore could not work unless and until 9 Local 19, PMA, and the JPLRC each acted on her lactation room accommodation request. Each entity “supervised and controlled [Ross’] work schedule[] or 10 conditions of employment.” Bonnette, 704 F.2d at 1470. PMA’s Threshold Motion is therefore DENIED as to the FLSA claim. Now, with the benefit of a 11 developed record and after considering all the briefing on the issue, the Court, sua sponte, finds and concludes as a matter of law that PMA is an employer pursuant 12 to the FLSA for the purpose of processing Ross’ lactation accommodation request because PMA jointly exercised control over conditions of Ross’ employment 13 before she set foot on the docks. (c) PMA also contends that it is not Ross’ employer pursuant to the 14 WLAD. In support of this argument, PMA primarily relies on Anderson v. Pacific Maritime Ass’n, 336 F.3d 924 (9th Cir. 2003), in which the Ninth Circuit found 15 that PMA was not an employer pursuant to Title VII and the WLAD for events that occurred on PMA-member docks. Anderson is materially distinguishable 16 from this case. The Anderson court held that PMA had “no direct role” in the allegedly racially hostile work environment on its member’s docks. Id. at 926. 17
18 1 PMA contends that it is not Ross’ employer because it does not have the power to hire 19 and fire dockworkers (Weber Decl., docket no. 54 at ¶ 7), does not supervise dockworkers (id. at ¶¶ 7, 17), and assists in negotiating dockworkers’ pay rates merely as an intermediary (id. at ¶ 5). 20 PMA also contends that, while it does keep employee data for its member companies, that factor is not dispositive on its own. Ross’ allegations regarding PMA, JPLRC, and Local 19, relate, however, to the work conditions, hiring, and dispatching before she even set foot in an SSA 21 terminal and not to the lactation accommodations at SSA’s terminals. See Plaintiff’s Opposition, docket no. 94 at 9. PMA’s contention that it does not control Ross’ employment on the docks is 22 therefore inapposite. 1 Here, Ross’ claims against PMA, Local 19, and the JPLRC are based on their handling of her lactation accommodation request, which occurred before she was 2 dispatched to her SSA job. PMA, the JPLRC, and Local 19 each played a necessary role in processing Ross’ request. See supra 3(b). PMA’s Threshold 3 Motion is therefore DENIED as to the WLAD claim. The Court, sua sponte, finds and concludes as a matter of law, after considering all the briefing on the issue, 4 that PMA, Local 19, and the JPLRC are employers pursuant to the WLAD because each entity had a “direct role” in processing Ross’ accommodation 5 request before she set foot on the docks. 6 (4) PMA’s Phase Two Motion for Summary Judgment, docket no. 53, is DENIED in part and DEFERRED in part as follows: 7 (a) PMA’s Phase Two Motion is DENIED as to the claims regarding PMA’s and the JPLRC’s alleged failure to provide adequate lactation 8 accommodations. Whether PMA and the JPLRC were responsible for a delay in the provision of lactation accommodations (under Claim III) involves disputed 9 issues of material fact. 10 (b) The Court’s ruling on the sex discrimination claim portion of the Motion, including PMA’s alleged refusal to provide credit towards hours worked 11 and light duty in violation of the WLAD (under Claim I) is DEFERRED. 12 (5) The Court’s ruling on Local 19’s and JPLRC’s Motion for Summary Judgment, docket no. 57, including Defendants’ alleged refusal to provide credit towards 13 hours worked and light duty in violation of the WLAD (under Claim I) is DEFERRED. 14 (6) Ross’ Motion for Partial Summary Judgment, docket no. 61, is DENIED in part and DEFERRED in part as follows: 15 (a) Ross’ Motion as to Defendants’ alleged failure to provide 16 appropriate lactation accommodations and facilities pursuant to the HSA, WLAD, and FLSA is DENIED. Whether Defendants failed to provide lactation 17 accommodations and facilities involves disputed issues of material fact. (b) The Court’s ruling on the remaining WLAD claim portion of the 18 Motion, including Defendants’ alleged refusal to provide light duty in violation of the WLAD (under Claim I) is DEFERRED. 19 (7) Local 19’s and JPLRC’s Second Motion for Summary Judgment, docket 20 no. 82 is DENIED in part and DEFERRED in part as follows: 21 (a) Local 19 and JPLRC contend that they are not employers pursuant to the FLSA. Local 19 contends that as a labor organization, it is exempt from the 22 FLSA, which defines employer as “any person acting directly or indirectly in the 1 interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an 2 employer).” 29 U.S.C. § 203(d) (emphasis added). The Court finds that the carveout for labor organizations does not apply here because Local 19 was “acting 3 as an employer” pursuant to the FLSA when it played a necessary role in processing Ross’ request for a lactation accommodation, which was required 4 before she could return to work. See supra 3(b). Local 19’s and JPLRC’s Second Motion is thus DENIED as to the FLSA employer portion of the Motion. After 5 considering all the briefing on the issue, the Court, sua sponte, finds and concludes as a matter of law that JPLRC and Local 19 are employers pursuant to the FLSA 6 for the purpose of processing Ross’ lactation accommodation request because they jointly exercised control over conditions of Ross’ employment before she set foot 7 on the docks. 8 (b) The Court’s ruling on the sex discrimination claim portion of the Motion, including the JPLRC’s alleged refusal to provide light duty in violation of 9 the WLAD (under Claim I), is DEFERRED. (8) Attached as Exhibit A is a draft chart listing Plaintiff’s claims as to each 10 Defendant and the present status of each claim. The parties are DIRECTED to meet and confer within seven (7) days and file any objections to the status of each claim as 11 reflected in the chart on or before noon on July 10, 2020. 12 (9) The Court SCHEDULES oral argument for Tuesday, July 14, 2020, at 9:30 a.m. The parties should be prepared to address the deferred portions of their 13 respective motions. Pursuant to General Order 08-20, the Court will conduct the hearing remotely. The Court’s staff will be in contact with counsel by email to provide a 14 conference call number and access code for the hearing. 15 (10) The Clerk is directed to send a copy of this Minute Order to all counsel of record. 16 Dated this 2nd day of July, 2020. 17 18 William M. McCool Clerk 19 s/Karen Dews 20 Deputy Clerk 21 22 Exhibit A Claims in the Against Current Status Objections SAC, docket Defendant no. 36 Claim I: Sex - HSA claim - The HSA sex discrimination discrimination solely against claim was not addressed in pursuant to SSA any motion and thus remains WLAD and for trial Healthy Starts -No oral argument Act (“HSA”)
- WLAD claim -The Court’s ruling on this against SSA, claim is DEFERRED to oral PMA, and the argument on July 14 (see JPLRC Minute Order)
Claim II: Hostile -SSA -Court’s ruling on this claim work is DEFERRED to oral environment argument on July 14 (see pursuant to Minute Order) WLAD on the basis of sex
Claim III: Failure -WLAD -All remain for trial due to to provide discrimination disputed issue of material fact adequate claim against (see Minute Order) lactation PMA and SSA -No oral argument accommodations -WLAD pursuant to the retaliation claim WLAD, HSA, against SSA and FLSA - HSA claim against SSA - FLSA claim against PMA, JPLRC, SSA, and Local 19 Claims in the Against Current Status Objections SAC, docket Defendant no. 36 Claims IV & V: - SSA -Court’s ruling on this claim IIED and/or is DEFERRED to oral NIED violating argument on July 14 (see duties owed Minute Order) under the HSA and the FLSA