Border Patrol Agent Not Entitled To Additional Breaks To Express Breast Milk

Josephine Puente was employed as a Border Patrol agent with the Department of Homeland Security (DHS) at the Ysleta Border Patrol Station facility in El Paso, Texas. In January 2000, Puente gave birth to a baby girl and elected to breast feed. She returned to full-duty status in March 2000. During her shift, Puente took breaks to express breast milk, which required her to leave her regular post, travel to the El Paso Port of Entry station where she could express her breast milk privately, clean and store her pump in a secure location, and return to her post. DHS’s break policy allowed Border Patrol agents at the El Paso facility two paid, 20-minute breaks and one paid, 30-minute lunch break per shift.

Puente wrote a memorandum to her supervisor asking that she be allowed additional breaks for the purposes of expressing her breast milk. DHS responded that while Puente could have additional breaks during the course of the day, she would have to make up the time by either using her paid leave or extending her shift to account for the time she was requesting. Puente sued, claiming she was the victim of pregnancy discrimination.

The federal Fifth Circuit Court of Appeals rejected Puente’s argument. As the Court saw it, Puente wanted an additional benefit that other employees did not have. The Court reasoned that “Puente did not allege that DHS took away the two 20-minute breaks or the one 30-minute lunch period she and every other Border Patrol agent received; she did not allege that her request for two 30-minute periods merely amounted to reallocating the 70 minutes of break time already given to her; and she did not allege that DHS expressly prohibited her from expressing breast milk during her 70 minutes.

“At bottom, Puente asked for a benefit different from that which every other Border Patrol agent received. While she was allegedly denied that benefit, she never alleges that she received less than the status quo as a result of her request. Assuming without deciding that Puente would fall within the class of persons protected by the Pregnancy Discrimination Act, the Pregnancy Discrimination Act does not impose an affirmative obligation on employers to grant preferential treatment. We agree with the trial court’s decision to dismiss Puente’s discrimination claim.”

Puente v. Ridge, 2009 WL 1311504 (5th Cir. 2009).

This article appears in the October 2009 issue