A retaliation claim can succeed even when the accommodation claim fails. In Newell v. Cardiovascular Clinic of West Tennessee, a federal jury in the Western District of Tennessee returned what is being described as the first jury verdict under the PUMP Act, after an owner fired an employee during a meeting where she complained about her pumping breaks. ComPsych ADA coach Laura Avery walks through the case below.
What happened
Ashton Newell was a sonographer at a cardiology practice in Jackson, Tennessee. About two weeks after she was hired, she told the clinic she was pregnant. The clinic allowed her unpaid maternity leave even though it was not covered by the FMLA and she would not have been eligible anyway.
Before she returned, Newell texted the office manager that she needed to pump around 9 and 3 and get lunch relatively on time. The clinic agreed to provide pumping breaks three times a day, though not necessarily at those exact times, and gave her a private office to pump in.
After she returned, the clinic raised concerns about late arrivals and late ultrasound reports. Newell also began photographing ultrasound schedules to show she was not getting enough break time, and a nurse worried the photos could be a HIPAA issue because patient names were visible. About a month after her return, the owner and office manager met with her about performance. The owner later said he did not plan to terminate her going into the meeting. When Newell complained about her pump breaks, the owner told her to get a lawyer, said she could do the work as told or get out, and fired her on the spot.
The decision
On summary judgment, the court rejected the failure to accommodate claim. Newell’s own texts showed she was asking for breaks around certain times, not demanding exact ones, and the clinic’s time records showed she received them. Offering approximate times was reasonable under the PUMP Act.
The retaliation claim went differently. The court found that both requesting breaks and complaining about them were protected activity. Because she was fired during the meeting where she complained, and the owner had not planned to terminate her beforehand, the court found enough evidence of a causal connection to send the claim to trial. The jury returned a verdict for Newell of $232,174.
Key takeaways for employers
- A retaliation claim can reach a jury even when the underlying accommodation claim fails. They are separate risks.
- An employer can handle the accommodation correctly and still create liability by how a manager or owner reacts when an employee complains about it.
- The PUMP Act amended the FLSA and has its own break time, private space, and anti-retaliation requirements, separate from the FMLA and ADA. Its coverage is also broader than the FMLA, so small and mid-sized practices are included.
- An adverse action during or right after protected activity can support an inference of retaliation.
- Train supervisors and owners on anti-retaliation obligations, and involve legal counsel before taking action close in time to an employee’s complaint.
- Review your written lactation accommodation policy against the PUMP Act’s current requirements, and document how break requests and responses are handled.
An important caveat: This is a single district court jury verdict, so it is not binding precedent, and the figure comes from reports of the outcome. The facts were also unusually stark, since the owner ended the employment during the meeting itself and used hostile language. It does show that juries are willing to put a real dollar amount on PUMP Act retaliation, and before 2023 the remedies for these violations were far more limited.
Need help reviewing your lactation accommodation policy or handling a complaint? Reach out to your ADA coach before making a decision.
