Failing to Cite? Say Bye to Employment Claims in the 5th Circuit
Does a plaintiff have to specify not only the facts but also the law that applies? In Bye v. MGM Resorts, Inc., the Fifth Circuit looks at a common pleading issue: What do you do when a plaintiff pleads facts that may or may not state claims under more than one statute but only cites one? In Bye, Bailie Bye filed a complaint alleging her employer discriminated against her based on her sex for not allowing lactation breaks. She only cited to Title VII and did not mention the FLSA (which provides for lactation breaks). Can she later pursue the FLSA claim? Not according to the Fifth Circuit.
The Not-So-Well-Pled Complaint
Generally, plaintiffs need only tell a story that shows that they have a claim against the defendant and puts the defendant on fair notice. In the employment law context, however, vaguely worded complaints without specific citations can require a team of lawyers to speculate on all the different combinations of claims and prepare a defense for each.
In Bye, the plaintiff “told a story” of being denied an adequate break for pumping breastmilk. Bye’s original complaint claimed that this denial was pregnancy discrimination, sex discrimination, harassment, and constructive discharge, all under Title VII. At the summary judgment stage of the litigation, for the first time Bye argued that the FLSA required her employer to provide “a reasonable break time for an employee to express milk” other than a restroom “shielded from view and free from intrusion [from others].”
Sometimes the Cited Law Matters
The Bye court ruled that Bye’s failure to cite the FLSA until summary judgment amounted to failing to bring an FLSA claim. The court seemed focused on how fundamentally different a Title VII case is from an FLSA case, and the fact that the plaintiff’s complaint was built around Title VII. The court also discussed how the plaintiff first asserted an FLSA claim on the eve of trial. Most other cases where a citation was missing, the missing-cite statute was either obviously the only grounds for relief or understood by the parties to be a ground for relief from the beginning.
“Hind-Cite” May Be 20/20
What can we learn from the Bye case?
Plaintiffs need to cite every separate legal basis for relief (not just the facts).
If plaintiffs don’t cite every legal basis that the defense counsel can imagine may be at issue, a court may not allow them to pursue those claims later.
Employers and their counsel can rest (a little) easier knowing a new uncited theory of the case will not come out of leftfield. However, depending on the facts, a court may permit an amendment to the pleading, even on the eve of trial, so be prepared.