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Berry v. Great American Dream, Inc.

United States District Court, N.D. Georgia, Atlanta Division

February 23, 2015

AMANDA BERRY, et al., Plaintiffs,
v.
THE GREAT AMERICAN DREAM, INC. doing business as Pin Ups, Defendant

For Amanda Berry, A'Cire Newby, Plaintiffs: Andrew Weiner, LEAD ATTORNEY, Jeffrey Sand, The Weiner Law Firm, LLC, Atlanta, GA.

For The Great American Dream, Inc., doing business as Pin Ups, Defendant: Bennet Dean Alsher, Ford & Harrison LLP - ATL, Atlanta, GA.

Page 1379

OPINION AND ORDER

THOMAS W. THRASH, JR., United States District Judge.

This is an FLSA action. It is before the Court on the Report and Recommendation [Doc. 58] of the Magistrate Judge recommending denying the Defendant's Motion for Partial Summary Judgment [Doc. 42]. The Court agrees with the suggested disposition of the motion. The Defendant's Motion for Partial Summary Judgment [Doc. 42] is DENIED.

I. Background

The facts relevant to the Defendant Pin Ups' Motion for Partial Summary Judgment are as follows. The Defendant operates a facility providing live adult entertainment.[1] The Defendant hires entertainers based on appearance and dancing ability, and it " has numerous specific image-related requirements for its entertainers in order to make sure the entertainers present the image and service that [the Defendant] sells." [2]

The Plaintiff Amanda Berry was a dancer for the Defendant. [3] In December of 2012, the Plaintiff became pregnant.[4] On February 17, 2013, the Plaintiff's employment with the Defendant was terminated. In particular, on February 17, 2013, the Plaintiff left before her shift was over,[5] and so she was asked to pay the Defendant's standard " leave early fee." [6] The Plaintiff refused to pay the fee, and so she was added to the " Fired List." [7] However, the Plaintiff was informed that she could return if she finally paid the fee.[8] Nevertheless, the Plaintiff claims that her employment was terminated due to her pregnancy in violation of Title VII of the Civil Rights Act and the Pregnancy Discrimination Act. To be sure, the Defendant has no official, written policy concerning pregnant dancers,[9] and many entertainers have worked for the Defendant while pregnant.[10] However, the Plaintiff testified that she was informed that she could not work for the Defendant because she was pregnant.[11]

The Defendant moved for summary judgment on the Plaintiff's discriminatory discharge claim. In its Motion, the Defendant did not argue that the Plaintiff was discharged for legitimate, non-discriminatory reasons. The Defendant instead argued that, assuming the Plaintiff was indeed discharged due to her pregnancy, the discharge was justified under the " bona fide occupational qualification" exception under Title VII. In support, the Defendant claims that " sex appeal" is a job requirement for working at its establishment, and that this requirement is integral to its business. The Magistrate Judge reviewed the parties' briefs and related submissions, and has recommended that the Defendant's Motion for Partial Summary Judgment be denied.

II. Legal Standard

Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists and that the movant is entitled to judgment as

Page 1380

a matter of law.[12] The court should view the evidence and any inferences that may be drawn in the light most favorable to the nonmovant.[13] The party seeking summary judgment must first identify grounds that show the absence of a genuine issue of material fact.[14] The burden then shifts to the nonmovant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist.[15] A " mere 'scintilla' of evidence supporting the opposing party's ...


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