Labor & Employment Law Daily Wrap Up, DISCRIMINATION—PREGNANCY—D. Nev.: Pregnant bartender fired after seeking reduced schedule gets trial on bias, non-accommodation claims, (Mar 18, 2025)

By Marjorie Johnson, J.D.

Evidence that other employees were given reduced hours created a triable issue as to whether similarly situated non-pregnant coworkers were treated more favorably.

A jury will decide whether a former Fat Tuesday bartender lost her job because she requested a 20-hour workweek due to her pregnancy or because she engaged in “insubordination” by submitting her hours to a new manager through the online payroll system rather than sending them in a text message, a federal district court ruled, concluding that triable issues existed as to whether she was treated less favorably than her peers and whether she requested a modified schedule as a pregnancy-related accommodation. However, the court granted the employer’s bid for summary judgment on her common-law claims for wrongful discharge, intentional infliction of emotional distress (IIED), and negligent infliction of emotional distress (NIED) (Martinez-Arriaga v. Briggs Management LLC, No. 2:23-cv-01845-JAD-NJK (D. Nev. Mar. 14, 2025)).

Shifts dwindled. In 2018, the employer hired the bartender to work at one of its Fat Tuesday chain restaurants in Las Vegas. Over the next three years, her schedule dwindled from five shifts per week to one, which she attributed to the COVID-19 pandemic and evolving childcare responsibilities.

Ordered to work more hours. In October 2021, she was five months pregnant and working a single weekly shift. Later that month, the restaurant’s new general manager allegedly introduced himself at a meeting and remarked that he was sent by upper management to “shake shit up” and “get it together.” He also advised staff that they would be expected to work three days or a certain number of hours per week and told them to submit their new schedules by the end of the week, though the parties disputed whether he demanded 20 or 30 hours at that initial meeting.

Terminated. The bartender initially submitted her proposed schedule on the online payroll platform and requested three shifts totaling 20 hours. However, after she learned that she might be left off the manager’s new schedule, she texted him a different three-shift schedule with 24 hours per week. He replied that he had “specifically requested” that she provide a schedule sooner and ultimately scheduled her to work just a single shift. Two days later, on October 30, he called her into his office and allegedly told her she was being fired because she would not work 30 hours per week and to “come back after you have your baby.” The employer claimed he terminated her because of her “insubordination” in failing to immediately text him a proposed schedule.

Communications with HR. The next day, she learned that he was letting another bartender work 20 hours per week. She then emailed the HR director, stating that she had been “terminated due to not being able to work 30 hours a week due to pregnancy.” The two exchanged more emails in November, both referencing a phone conversation in which the HR director told her that she had not been terminated. Disjointed communication continued between her and various company representatives until the summer of 2022. While the parties disputed who was to blame, it was undisputed that she never worked another shift at the restaurant following October 30, 2021.

She subsequently filed a charge of discrimination with the EEOC and Nevada Equal Rights Commission (NERC) alleging that the manager had terminated her employment shortly after she informed him that she could not work more than 30 hours per week due to her pregnancy, while other non-pregnant employees were permitted to work less than 30 hours.

Triable issue as to disparate treatment. The court denied the employer’s bid for summary judgment on her discrimination claim under Nevada’s anti-bias law since a triable issue existed as to whether she was treated differently from similarly situated non-pregnant employees. As proof, she submitted the restaurant’s shift schedules for the weeks following her final meeting with the manager, which showed that several coworkers were granted the less-than-30-hours schedule that she was denied. One employee hired shortly after she was dismissed was scheduled to work the same number of shifts that she unsuccessfully proposed for herself. She also provided evidence that the manager told a coworker that she needed to work a minimum of just 20 hours per week at around the same time he allegedly dismissed her for failing to submit at least 30 hours of availability.

The employer argued that certain comparators were not similarly situated since they did not engage in “insubordination” by submitting their hours through the online payroll system rather than sending them in a text message. However, triable issues surrounded the bartender’s alleged insubordination since the parties disputed whether the manager told her that the payroll system was not a viable way to update her availability.

Exhaustion. The court rejected the employer’s contention that the bartender’s claims of hostile work environment (HWE) and failure to accommodate were barred because she failed to exhaust her administrative remedies as to each claim. Rather both claims were reasonably related to the allegations in her administrative charge.

Pregnancy-related accommodation request? The court also denied the employer’s bid for summary judgment on her failure-to-accommodate claim since a triable issue existed to whether she requested a reasonable pregnancy-related accommodation. Her concession that she did not formally ask for an “accommodation” did not foreclose her claim since, as a non-lawyer, she was unlikely to have a detailed understanding of what constitutes an accommodation under Nevada law. Her acknowledgement that working less than 30 hours was her preference also did not foreclose a jury from concluding that she requested a pregnancy-related accommodation.

The Nevada Pregnant Workers’ Fairness Act (NPWFA) lists “a modified work schedule” as a possible reasonable accommodation, and whether her request to work less than 30 hours per week was a demand for a reasonable pregnancy-related accommodation under the NPWFA was a disputed question for a jury. Notably, in emails to the HR director she explained that she was pregnant and doing her best to accommodate the demands of “new managers” and would have “gladly provided” the manager with a doctor’s note explaining the pregnancy-related conditions that prevented her from working 30 hours. She also testified that she asked the manager if she could keep her Saturday shift until going on maternity leave because she was “planning on giving birth soon.”

No HWE. However, her HWE claim failed since she could not demonstrate that she was subjected to severe or pervasive harassment. Though she claimed that the manager’s poor treatment of her was not limited to telling her to come back after she had her baby, she did not identify any other problematic pregnancy-related incidents and confirmed that she never heard anyone make “any negative or derogatory comments” about gender or pregnancy.

Other claims tossed. In addition, her common law claim for wrongful termination failed since a statutory remedy was available. The court also tossed her IIED claim since she could not establish that she was subjected to “extreme and outrageous conduct,” and her NIED claim also failed since there was no evidence she suffered “physical impact or serious emotional distress.”

The case is No. 2:23-cv-01845-JAD-NJK.

Judge: Dorsey, J.

Attorneys: Jason J. Kuller (Rafii & Associates) for Jessica Martinez-Arriaga. Jeffrey D. Winchester (O'Hagan Meyer) for Briggs Management LLC dba Fat Tuesday.

Companies: Briggs Management LLC; Fat Tuesday

Cases: Discharge PregnancyDiscrimination SexDiscrimination Discrimination Procedure StateLawClaims TortClaims NevadaNews