Bye v. MGM Resorts, 49 F.4th 918

Bailie Bye worked as a server at Beau Rivage (Terrace Café) from Jan 2015 and returned from maternity leave on Mar 10, 2019; she worked 8am–4pm shifts.
Standard server breaks: one mandatory 30‑minute and two optional 15‑minute breaks via a rotating “breaker” schedule; breaks sometimes delayed for operational reasons.
Bye requested lactation accommodations: initially two 30–40 minute breaks (granted), later a medical certification asking for two 45‑minute breaks at 10:00am and 1:00pm (initially resisted; Beau Rivage proposed alternatives, then agreed to breaks between 10:00–10:30 and 1:00–1:30).
Bye alleges breaks were often delayed or denied, the lactation room was unclean at times, co‑worker harassment followed, HR did not remedy, and she resigned with two weeks’ notice on June 28, 2019; EEOC charges were filed May 29 and Aug 2, 2019.
Bye sued in state court (Nov 13, 2019); case was removed; the district court granted summary judgment for Beau Rivage on Title VII hostile‑work‑environment and constructive discharge claims and declined to consider a belated FLSA claim raised in Bye’s summary‑judgment response; the Fifth Circuit affirmed (majority), with Judge Ho concurring in part and dissenting as to the FLSA.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Hostile work environment / harassment under Title VII	Bye: coworkers harassed her about pumping breaks, refused to cover/on‑time break, created abusive conditions tied to sex/pregnancy	Beau Rivage: Bye offered only conclusory, subjective testimony; no specifics on who, frequency, or sex‑based motive; conduct not severe/pervasive	Affirmed: Evidence insufficient to show sex‑based, severe or pervasive harassment or that employer failed to remediate
Constructive discharge	Bye: continuing harassment and missed/delayed pump breaks (pain/engorgement) forced her to resign	Beau Rivage: management generally accommodated her and breaks occurred most days; delays stemmed from operational needs, not intolerable conditions	Affirmed: Conditions not so intolerable that a reasonable employee would be compelled to resign; constructive discharge standard not met
Fair Labor Standards Act (lactation provision)	Bye: argued in response to summary judgment that FLSA §207(r) was violated by sporadic/late breaks and unsanitary lactation room	Beau Rivage: FLSA claim was never pleaded, raised belatedly, untimely under scheduling orders, prejudicial to defendant, and would have required new discovery	Affirmed (majority): District court did not abuse discretion in refusing to consider/permit the late FLSA claim; Judge Ho dissented on this point, arguing the complaint’s facts were sufficient under Johnson to support an FLSA claim

Johnson v. City of Shelby, 574 U.S. 10 (2014) (pleading requires facts, not legal theory)
Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (hostile‑work‑environment standard; not all workplace harassment actionable)
Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998) (same)
Badgerow v. REJ Properties, Inc., 974 F.3d 610 (5th Cir. 2020) (severe or pervasive harassment test)
Brown v. Kinney Shoe Corp., 237 F.3d 556 (5th Cir. 2001) (constructive discharge requires intolerable conditions)
Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985 (5th Cir. 2008) (factors relevant to constructive discharge)
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment burden-shifting)
Twombly v. Bell Atlantic Corp., 550 U.S. 544 (2007) (pleading standards)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standards)
Douglas v. Wells Fargo Bank, N.A., 992 F.3d 367 (5th Cir. 2021) (late‑raised claims at summary judgment not properly before the court)
Jackson v. Gautreaux, 3 F.4th 182 (5th Cir. 2021) (new claims raised only in response to summary judgment are not properly before the court)
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) (rejecting heightened pleading in employment discrimination)
Hewitt v. Helix Energy Solutions Group, 15 F.4th 289 (5th Cir. 2021) (en banc) (discussion of FLSA’s role in improving working conditions)