JOHN A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE.
A disabled employee brings suit against his employer alleging violations of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., the Maine Whistleblower Protection Act, 26 M.R.S. §§ 831 et seq., and the Maine Human Rights Act, 5 M.R.S. §§ 4571 et seq. The Defendants move for summary judgment on all claims. The employee has not established a prima facie case of retaliation or discrimination by disparate treatment because he did not
On July 1, 2016, Ryan D. Burnett filed a complaint against Ocean Properties Ltd. (Ocean Properties) and AmeriPort LLC (AmeriPort) (collectively Defendants, AmeriPort),
On November 13, 2017, AmeriPort filed a motion for summary judgment and a statement of facts. Defs.' Mem. of Law in Support of Mot. for Summ. J. (ECF No. 68); Defs.' Statement of Material Facts (ECF No. 69) (DSMF). They amended their motion on November 21, 2017. Defs.' Am. Mem. of Law in Support of Mot. for Summ. J. (ECF No. 71) (Defs.' Mot.).
On December 29, 2017, Mr. Burnett filed responses to AmeriPort's motion and the Defendants' statement of facts. Pl.'s Opp'n to Summ. J. (ECF No. 75) (Pl.'s Opp'n); Pl.'s Opposing and Additional Statement of Material Facts at 1-22 (ECF No. 76)
On January 23, 2018, AmeriPort replied to Mr. Burnett's response and Mr. Burnett's additional statements of fact. Defs.' Reply in Support of Mot. for Summ. J. (ECF No. 79) (Defs.' Reply); Defs.' Reply to Pl.'s Additional Statement of Facts in Opp'n to Defs.' Mot. for Summ. J. (ECF No. 80) (DRPSAMF).
Ocean Properties is a duly authorized Maine business corporation that operates numerous hotels nationwide, including the Sable Oaks Marriott
Ocean Properties calls the Sable Oaks Marriott "AmeriPort". Am. Compl. ¶ 5. AmeriPort is a former New Hampshire Limited Liability Company no longer authorized to do business in either Maine or New Hampshire. Am. Compl. ¶ 11. Ameri-Port, LLC has been administratively dissolved and has not filed an annual report since 2011. Am. Compl. ¶ 12.
Ryan D. Burnett resides in the town of Eliot, Maine. Am. Compl. ¶ 3. Mr. Burnett worked in Ocean Properties' Portland reservation center, located at various times in several locations in the Sable Oaks properties in South Portland.
On May 16, 2009, Ocean Properties hired Mr. Burnett to work as a Reservations Agent at a call center. DSMF ¶ 1; PRDSMF ¶ 1. The call center was initially located in the basement of the Holiday Inn & Suites near the Sable Oaks Marriot.
Mr. Burnett reported directly to several supervisors during his time as a Reservations Agent. DSMF ¶ 3; PRDSMF ¶ 3. Until the last eight months of his employment, Mr. Burnett's supervisor was Lori Darsaoui.
Ms. Darsaoui's supervisor was Vice President of Revenue Management, Joyce Dawson.
Since Mr. Burnett's place of employment in 2009 was inside a hotel, he expected that it would be wheelchair accessible at all times, without the need for him to request an accommodation.
Ms. Darsaoui informed Mr. Burnett that he could use the handicapped accessible ramp at the rear entrance of the hotel if he chose to do so.
After Mr. Burnett informed Ms. Dawson of the incident, an accommodation was made to forego the keycard access and leave the door unlocked after 6 a.m. for Mr. Burnett's access. DSMF ¶ 58; PRDSMF ¶ 58. According to Mr. Burnett, this was the accommodation that he wanted from AmeriPort, as he had asked for the door to be unlocked before that point.
Ms. Darsaoui described Mr. Reiter's behavior toward Mr. Burnett as "inappropriate and unprofessional." PSAMF ¶ 29; DRPSAMF ¶ 29. Ms. Darsaoui does not recall whether Mr. Reiter received corrective action but said that if he had, it would be in his personnel file.
On one occasion in 2012, a handicapped guest had parked in the handicap loading/unloading zone while Mr. Burnett was
On that occasion, Ms. Darsaoui believed a guest with a handicapped sticker was parked in a handicapped spot in the back of the building, and she told Mr. Burnett, "I couldn't prevent someone who was a guest at the hotel and had a handicapped accessible designation on their vehicle from parking there. I can't control that."
This was the only occasion during Mr. Burnett's seven years with AmeriPort where he reported that the loading/unloading zone was blocked and the only occasion where a guest completely blocked the access ramp.
On December 30, 2012, there was a snowstorm, and by the time Mr. Burnett reported to work at the Holiday Inn location the following morning, on December 31, 2012, the rear access ramp had not been completely shoveled. DSMF ¶ 43; PRDSMF ¶ 43. The front entrance to the
The same day, on December 31, 2012, Mr. Burnett reported to Ms. Darsaoui that he had an issue accessing the building to get to work following the snowstorm in which the walkways and ramps were not cleared. PSAMF ¶ 36; DRPSAMF ¶ 36. Mr. Burnett told Ms. Darsaoui that "honestly this is not the first time" he had encountered issues with "access to the building."
On January 2, 2013, Mr. Burnett submitted a "missed punch" form to Ms. Darsaoui requesting that he be compensated for the December 31, 2012 shift he did not work. DSMF ¶ 46; PRDSMF ¶ 46. Ms. Darsaoui responded to Mr. Burnett by telling him that he is permitted to park under the canopy at the main entrance of the hotel and enter through the main lobby. DSMF ¶ 47; PRDSMF ¶ 47. This was the first time anyone mentioned to Mr. Burnett that he was permitted to park underneath the canopy.
When Mr. Burnett complained that he could not access the building on or about December 31, 2012, Ms. Darsaoui believed that he had arrived to work, saw that the back of the building was not cleared of snow, left work without trying to access the building in the front, and then asked to be paid for the day. PSAMF ¶ 39; DRPSAMF ¶ 39. Ms. Darsaoui does not know whether Mr. Burnett tried to access the front of the building after the snowstorm on December 31, 2012, and she did not find out before concluding that "he didn't work, which is why he was not paid
Even though Ms. Darsaoui knows that Mr. Burnett cannot physically walk and, therefore, must wheel his chair through snow when there is a significant storm in order to get to and from work, Ms. Darsaoui would need more information to know whether this would be a reason to excuse him from being absent from work due to snow. PSAMF ¶ 42; DRPSAMF ¶ 42. Some of the questions Ms. Darsaoui would want answered about whether absence due to a snowstorm is disability-related include: "where the issue was, if it was at the home, if it was at the workplace, what the issue was." PSAMF ¶ 43; DRPSAMF ¶ 43. However, although Ms. Darsaoui called Mr. Burnett and left voicemails after he did not arrive for his shift, she never had a conversation about the reason Mr. Burnett needed to miss work due to a snowstorm.
Ms. Dawson said that in the event of snowstorms presenting access challenges, she would work hard to make sure that snow would be removed so that an employee like Mr. Burnett would be able to access the building and be able to work, and that she "can't understand a situation where we wouldn't be able to get the snow removed so someone could enter a building."
Several months later, in the spring of 2013, a maintenance employee and a morning
No AmeriPort management personnel witnessed this incident, but Mr. Burnett did tell a shift supervisor about it before leaving work that day.
In December 2013, AmeriPort moved from the Holiday Inn at 303 Sable Oaks Drive to 505 Country Club Drive in South Portland, Maine. DSMF ¶ 61; PRDSMF ¶ 61. In November 2013, before the move, some AmeriPort employees went to the new location for a training session, and Mr. Burnett notified another employee, who in turn notified Ms. Darsaoui, that the restroom was not wheelchair accessible.
AmeriPort placed Mr. Burnett on leave until it was able to make the changes to the restroom that Mr. Burnett needed.
In the December 24, 2013 email, Mr. Burnett also indicated that there was an insufficient number of handicapped parking spaces at the new location. DSMF ¶ 62; PRDSMF ¶ 62. Mr. Burnett said that there were at least three employees who needed to use handicapped spaces and only one handicapped parking space available.
In the December 24, 2013 email, Mr. Burnett also noted that the wooden doors at the front lobby of AmeriPort's new location were not automatic. DSMF ¶ 64; PRDSMF ¶ 65. Mr. Burnett sometimes had difficulty opening these doors if he had his "lunch pail, morning coffee, smoothie or whatever" in one hand.
On August 28, 2014, Mr. Burnett sent a message to Nick Robertshaw requesting "that we need to put push button automatic doors in for the entry of [the] building," because the doors were heavy, and "hard to hold open" when Mr. Burnett would push himself through "without them closing" on him. PSAMF ¶ 53; DRPSAMF ¶ 53. At the time of the August 28, 2014 message, Mr. Robertshaw would have been one of Mr. Burnett's direct reservation supervisors he reported to on a day to day basis.
Ms. Darsaoui asked a contractor who works for Defendants, Mark Mooney, whether the doors were ADA compliant. PSAMF ¶ 56; DRPSAMF ¶ 56. Mr. Mooney did not respond to Ms. Darsaoui's inquiry about this issue for twenty days. PSAMF ¶ 57; DRPSAMF ¶ 57. On September 10, 2014, Ms. Darsaoui followed up with contractor Mark Mooney to determine whether the set of large wooden doors to enter the lobby of the hotel's clubhouse were compliant with the ADA, and Mooney responded, "as constructed when the building was built, yes."
Mr. Burnett hurt himself trying to open the heavy wood doors that he had complained about and had asked to have replaced.
In his Amended Complaint, Mr. Burnett alleged that he was "humiliated" after his then-manager was critical for his taking too long to use the bathroom during a shift. DSMF ¶ 68; PRDSMF ¶ 69. This discussion took place in one of Mr. Burnett's supervisor's office at the start of his annual performance review. DSMF ¶ 69; PRDSMF ¶ 70. Mr. Burnett's supervisor asked whether it took him longer than most to use the restroom. DSMF ¶ 69; PRDSMF ¶ 70. When he responded "yes," the manager said that she would not ask him any further questions due to medical privacy laws, but she may need a doctor's note to verify his statement.
On or about February 20, 2015, AmeriPort's elevator at its new location was improperly locked and was inaccessible to anyone using it. DSMF ¶ 72; PRDSMF ¶ 73. Mr. Burnett reported to work that morning and was informed by his morning supervisor that the elevator was out of service. DSMF ¶ 72; PRDSMF ¶ 73. Mr. Burnett was sent home because the elevator needed to be repaired.
Four days later, on February 24, 2015, Mr. Burnett sent a message to Ms. Dawson via AmeriPort's instant messaging system. DSMF ¶ 74; PRDSMF ¶ 75. Mr. Burnett stated that Ms. Darsaoui informed him that he would be paid for four hours of the scheduled seven hour shift, even though no actual work was performed. DSMF ¶ 74; PRDSMF ¶ 75. However, Mr. Burnett complained that he should have been paid the full six and a half hours (seven hours less a half-hour lunch break) that he would have been paid had the elevator been in service. DSMF ¶ 75; PRDSMF ¶ 76.
On February 24, 2015, Mr. Burnett sent a message to Ms. Dawson explaining that the elevator was not working "last Friday," when he was scheduled to work from 7 am to 2 pm. PSAMF ¶ 63; DRPSAMF ¶ 63. Mr. Burnett's message to Ms. Dawson further explained that his supervisor, Nick Robertshaw, was notified, and Mr. Robertshaw told Mr. Burnett to "go home" because "there was nothing he could do." PSAMF ¶ 64; DRPSAMF ¶ 64. Mr. Burnett
Approximately one week after the February 20, 2015 incident with AmeriPort's elevator, Ms. Dawson held a meeting with Ms. Darsaoui and Mr. Burnett to discuss his concerns with being paid for the full seven-hour shift. DSMF ¶ 76; PRDSMF ¶ 77. During the meeting, Ms. Dawson explained to Mr. Burnett that sometimes things were going to happen out of AmeriPort's control, but if Mr. Burnett would work with them, they could find solutions to overcome these problems.
Ms. Dawson's conversation with Mr. Burnett about not being paid for his full shift due to the elevator malfunction was very brief. PSAMF ¶ 73; DRPSAMF ¶ 73. In making the decision to pay Mr. Burnett for less than the entire shift, Ms. Dawson did not take into consideration where or how far away he lived, and did not recall having a conversation with Mr. Robertshaw or Ms. Darsaoui about the issue.
On this particular occasion, AmeriPort decided to pay Mr. Burnett for the four hours that the elevator was out service due to inconvenience of Mr. Burnett having to report to work, but not for the full shift.
In or around March of 2015, AmeriPort informed its employees that its elevator would be out of service for a couple of weeks due to a repair to begin on May 26, 2015. DSMF ¶ 79; PRDSMF ¶ 80. One employee in addition to Mr. Burnett required the elevator to work on the second floor. DSMF ¶ 79; PRDSMF ¶ 80. During the repair, Mr. Burnett and the other employee were placed in a workspace on the first floor.
On May 2, 2015, the elevator quit working, and the scheduled elevator repair was suddenly moved up from May 26, 2015 to May 5, 2015. DSMF ¶ 81; PRDSMF ¶ 82. Mr. Burnett was scheduled to work on May 5, 2015, and when he reported to the new workspace that day, there was an issue with the desk. DSMF ¶ 81; PRDSMF ¶ 82. When Mr. Burnett noted the issue, the desk was fixed the same day.
Mr. Burnett's was not satisfied with the situation because he felt segregated, had to ask a supervisor to bring him water, and the company "could have had a microwave available or something of this sort" since the breakroom was on an upper level.
Whenever an employee needed two or more consecutive shifts off from work, AmeriPort's policy provided that the employee could request in advance not to be put on the schedule.
AmeriPort maintained a call out policy which required any employee unable to come to work to call out for his or her shift at least two hours prior to the start of the shift, absent an emergency. DSMF ¶ 11; PRDSMF ¶ 11.
Mr. Burnett generally worked AmeriPort's opening shift from 7 a.m. to 3 p.m. DSMF ¶ 27; PRDSMF ¶ 27. If Mr. Burnett was absent, there may not have been sufficient capacity to receive a customer's reservation or inquiry, as there were often only three to four individuals assigned to the morning shifts.
Mr. Burnett received several corrective actions during his employment with AmeriPort for various issues, including reporting late to work. DSMF ¶ 18; PRDSMF ¶ 18. AmeriPort documented Mr. Burnett's full attendance record in his corrective actions, including days he called out and was excused.
In the corrective action Mr. Burnett received on September 27, 2010, his full attendance record over the past 60 days was documented, including the July 12, 2010, tardy that was labeled "excused" and the July 17, 2010 tardy labeled "(chair lift) excused."
In the first corrective action dated September 27, 2010, AmeriPort stated: "If Ryan needs to adjust his availability in order to avoid be[ing] tardy he should consider this option right away." DSMF
In December 2014, Mr. Burnett received a positive performance review, earning a 3.5 out of a possible 5 points in his evaluation — the highest score Mr. Burnett had ever achieved during his employment with AmeriPort. DSMF ¶ 34; PRDSMF ¶ 34. Under the section entitled "Developmental Areas: What Specific Aspects of Performance Need Improvement," Mr. Burnett's then office manager, Laura Chakirelis, wrote that "Ryan has a habit of being late to work which is beginning to become a consistant (sic) occurance (sic)." DSMF ¶ 34; PRDSMF ¶ 34. In this performance review, AmeriPort again suggested that if he could not arrive to work on time, Mr. Burnett should alter his availability to better suit his personal schedule. DSMF ¶ 35; PRDSMF ¶ 35. Mr. Burnett testified that he found nothing in this performance review to be discriminatory.
Mr. Burnett testified that he often would tell his supervisors that he was absent for "personal" reasons or "medical" reasons, depending on his comfort level with that supervisor. DSMF ¶ 38; PRDSMF ¶¶ 38-39. Mr. Burnett claimed that on some days when he had bladder or bowel function issues, he would not be able to attend work for the day because the "personal issue usually last[ed] 24 to 48 hours that I needed to deal with and take care of myself and make sure I stay[ed] clean."
Ms. Darsaoui discussed with Ms. Dawson that disability-related absences like when Mr. Burnett could not get to work because his handicapped accessible truck broke down and a part had to be replaced should not "count" as part of his corrective action, but they did not discuss whether such disability-related reasons for being absent should be "on the corrective action form."
Regardless of the reason Mr. Burnett provided to his shift supervisor when he called out from work, Ms. Dawson would not be notified of the reason for the callout, including when the callouts were the basis for employee discipline.
Mr. Burnett testified at his deposition that he could not identify any specific dates on which he believes he was unfairly or discriminatorily disciplined for disability-related problems, and which dates in his corrective actions were unrelated to his disability.
In or around June 2015, Mr. Burnett went to work for the Foreign Independent Travel (FIT) Department, where he predominantly took online reservations booking for tour groups, rather than predominantly answering phone calls.
Mr. Burnett did not have any concerns or corrective actions during his months working in the FIT department, and his manager addressed any issues he had.
On June 29, 2015, Mr. Burnett filed a complaint (Charge) with the Maine Human Rights Commission. Pl.'s Opp'n to Defs.' Partial Mot. to Dismiss Am. Complaint and Opp'n to Mot. to Strike Impertinent Allegations Attach 2 Complaint of Discrimination (ECF No. 23); DSMF ¶ 86; PRDSMF ¶ 87.
When asked at his deposition as to what acts of retaliation had occurred after he filed his Charge on June 29, 2015, Mr. Burnett stated "I don't believe there was anything after this charge, as far as retaliation."
When questioned at deposition as to how AmeriPort retaliated against him, Mr. Burnett responded "by writing me up continuously when I had a proven medical condition."
On February 8, 2016, Mr. Burnett notified AmeriPort of his resignation effective February 26, 2016.
Mr. Burnett applied for the FCi position in November of 2015 while still employed with AmeriPort, because, at least in part, he had moved to a new home in or around January 2014 and his commute to AmeriPort was an hour long.
Ocean Properties maintains policies prohibiting and preventing discrimination based on disability.
Ms. Dawson does not recall anyone discussing that they should ask Mr. Burnett for a doctor's note to determine what limitations he had based on his obvious disability from being in a wheelchair. PSAMF ¶ 25; DRPSAMF ¶ 25. Ms. Dawson does not have any documents available to her in the form of policies, procedures, or training materials that discuss how to accommodate employees with disabilities.
Ms. Darasaoui never had a conversation with Mr. Burnett about what kind of limitations he had related to his inability to walk.
AmeriPort asserts that Mr. Burnett cannot make out a prima facie case because he never suffered an adverse employment action during his seven years of employment. Defs.' Mot. at 22. AmeriPort claims Mr. Burnett was never demoted, never had his pay reduced, and was never subject to an unfavorable transfer. Id. AmeriPort argues that mere criticism, counseling, or corrective actions do not constitute adverse action. Id. at 22-23.
AmeriPort also insists that it did not constructively discharge Mr. Burnett. Id. at 23. AmeriPort suggests that the incidents Mr. Burnett cites do not rise to the level of onerous or abusive, as required for constructive termination. Id. AmeriPort cites Mr. Burnett's testimony that he was attracted to the shorter commute and better pay of a different job. Id. at 24.
AmeriPort also disputes whether Mr. Burnett has presented any evidence on the fourth element of his prima facie case, that he was treated less favorably than non-disabled employees. Id. at 24-25.
Mr. Burnett begins by citing the ADA Amendments Act of 2008, which sought to refocus the inquiry on whether discrimination has occurred, not whether the individual meets the definition of a disability. Pl.'s Opp'n at 9-10 ("This distinction between the original ADA and the ADAAA is significant because the vast majority of precedent cited by Defendants in favor of summary judgment predate the 2008 Amendments"). Mr. Burnett also points to the 2010 Standards for Accessible Design, implying that AmeriPort's facilities did not bring their facilities up to those standards and "Defendants' failure to do so for Mr. Burnett raises a strong inference of discriminatory animus." Id. at 10-11.
AmeriPort accuses Mr. Burnett of conflating accessibility standards for the public under Title III of the ADA with requirements for employees under Title I. Defs.' Reply at 12-13. AmeriPort suggests that Mr. Burnett's theory that "any potential violation of Title III necessarily results in a Title I failure to accommodate ... would lead to an absurd result" because it "would provide monetary relief to employees who merely raised technical violations under Title III where injunctive relief is the only remedy." Id. at 13.
AmeriPort argues that Mr. Burnett was not a qualified individual under the ADA because he demonstrated that he could not perform all of the essential functions of the job. Defs.' Mot. at 14. AmeriPort claims that "employers are permitted to treat regular attendance as an essential job requirement and need not accommodate erratic or unreliable attendance." Id. AmeriPort points to Mr. Burnett's five corrective actions during the course of his employment "due to his chronic tardiness and absenteeism." Id. at 15.
AmeriPort also maintains that it repeatedly engaged in the interactive process and provided all reasonable accommodations. Id. at 16-21. AmeriPort contends that employers are not to be punished for inevitable isolated breakdowns or temporary inconveniences, which it asserts is all that happened here. Id. at 16-17.
Mr. Burnett responds that he was a qualified individual because it is a question of fact whether regular, predictable attendance was an essential function of the job. Pl.'s Opp'n at 14. He maintains that tardiness and absences were common occurrences, and that shifts were staggered to account for varying attendance and high turnover. Id. Mr. Burnett also claims that AmeriPort essentially argues that he was not qualified because his disability caused attendance issues, which Mr. Burnett claims "suggests a violation of the Family Medical Leave Act." Id. at 15. Mr. Burnett asserts that AmeriPort maintained a "`no fault' attendance/call out policy" in violation of the FMLA. Id.
Mr. Burnett contends that AmeriPort failed to engage in the interactive process, which requires a great deal of communication between the employer and the employee. Id. at 16. Mr. Burnett points out that unreasonable delay or obstructing the interactive process can amount to a failure to accommodate. Id. at 17.
AmeriPort insists that it provided Mr. Burnett numerous accommodations during his employment. Defs.' Reply at 1-2; 5-9. It also claims it repeatedly engaged in the interactive process in good faith. Id. at 9-10. In support of its argument that Mr. Burnett was not a qualified individual because he could not meet the essential requirements of the job, AmeriPort points to portions of Mr. Burnett's testimony in which he acknowledged the importance of arriving to work on time, and AmeriPort's offer to allow Mr. Burnett to work a different shift. Id. at 3-5.
AmeriPort also submits that Mr. Burnett's attempt to raise FMLA issues are unsupported but also precluded since he did not raise them in any prior pleading or discovery. Id. at 12.
AmeriPort concedes that Mr. Burnett engaged in protected conduct by requesting accommodations and filing his Charge. Defs.' Mot. at 26. AmeriPort maintains, however, that Mr. Burnett did not suffer any adverse employment action, and thus was not retaliated against for that protected conduct. Id. at 26-29.
Mr. Burnett highlights the context-specific nature of the adverse action inquiry, and suggests that threats of discharge "which occurred in every one of Mr. Burnett's corrective actions, can be considered
AmeriPort reiterates that "mere corrective actions not accompanied by any reduction in responsibilities or pay do not constitute adverse employment actions." Defs. Reply at 10. AmeriPort also maintains that neither corrective actions nor alleged failures to accommodate rose to the level of a constructive discharge, and that Mr. Burnett left willingly for a better job. Id. at 11.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A fact is "material" if it "has the potential to change the outcome of the suit." Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir. 2011) (quoting Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010)). A dispute is "genuine" if "a reasonable jury could resolve the point in favor of the nonmoving party." Id. (quoting McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995)).
Once this evidence is supplied by the moving party, the nonmovant must "produce `specific facts, in suitable evidentiary form, to ... establish the presence of a trialworthy issue.'" Triangle Trading Co., Inc. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (quoting Morris v. Gov't Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994)). In other words, the non-moving party must "present `enough competent evidence' to enable a factfinder to decide in its favor on the disputed claims." Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir. 2002) (quoting Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir. 1993)). The Court then "views the facts and draws all reasonable inferences in favor of the nonmoving party." Ophthalmic Surgeons, Ltd. v. Paychex, Inc., 632 F.3d 31, 35 (1st Cir. 2011). However, the Court "afford[s] no evidentiary weight to `conclusory allegations, empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is less than significantly probative.'" Tropigas, 637 F.3d at 56 (quoting Rogan v. City of Boston, 267 F.3d 24, 27 (1st Cir. 2001)); accord Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir. 2009).
"Claims ... under the ADA are subject to the same remedies and procedures as those under Title VII of the Civil Rights Act of 1964." Farris v. Shinseki, 660 F.3d 557, 562 (1st Cir. 2011) (citing 42 U.S.C. §§ 2000e et seq.; 42 U.S.C. § 12117(a)). Employees alleging disability discrimination or retaliation "must file an administrative claim with the EEOC or with a parallel state agency before a civil action may be brought." Thornton v. United Parcel Serv., Inc., 587 F.3d 27, 31 (1st Cir. 2009). "When filed with a state agency, the administrative [charge] must be filed within 300 days after the alleged unlawful employment practice occurred." Id. at 31 (citing 42 U.S.C. § 2000e-5(e)(1); Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Maine antidiscrimination and
The Supreme Court explained:
Morgan, 536 U.S. at 113, 122 S.Ct. 2061. There are a few exceptions to this "discrete" acts approach, however.
First, constructive termination claims, based on a hostile environment, "are different in kind from discrete acts. Their very nature involves repeated conduct." Id. at 115, 122 S.Ct. 2061. "Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Id. at 117, 122 S.Ct. 2061.
Second, under the "scope of the investigation rule," "the exact wording of the charge ... need not presage with literary exactitude the judicial pleadings which may follow," so a district court may "look beyond the four corners of the underlying administrative charge to consider collateral and alternative bases or acts that would have been uncovered in a reasonable investigation." Thornton, 587 F.3d at 32 (quoting Davis v. Lucent Technologies, Inc., 251 F.3d 227, 233 (1st Cir. 2001). The rule does not, however, provide a plaintiff with an unlimited license to extend his claim endlessly beyond the bounds and parameters encompassed by the administrative charge. Id.
Third, "[a] claim of retaliation for filing an administrative charge ... is one of the narrow exceptions to the normal rule of exhaustion of administrative remedies. Such a claim may ordinarily be boot-strapped onto the other ... claims arising out of the administrative charge and considered by the district court...." Franceschi v. U.S. Dep't of Veterans Affairs, 514 F.3d 81, 86 (1st Cir. 2008).
Accordingly, in assessing the merits of Mr. Burnett's claims, the Court considers (1) those discrete acts contained in the charge which occurred between September 2, 2014 and June 29, 2015, (2) other discrete acts within that time period that would have been uncovered in a reasonable investigation, (3) any discrete retaliatory acts resulting from Mr. Burnett filing his charge, and (4) all of the conditions and aspects of the environment of Mr. Burnett's entire employment period for purposes of his constructive termination argument.
Title I of the ADA prohibits discrimination "against a qualified individual on the basis of disability in regard to ... the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C.
Absent direct evidence of discrimination, courts are directed to use the familiar burden-shifting paradigm outlined by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), in evaluating disability discrimination claims under the ADA. See Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999). "To establish a prima facie case of disability discrimination under the ADA, a plaintiff must prove: (1) that she `was disabled' within the meaning of the ADA; (2) that she was able to perform the essential functions of her job with or without accommodation; and (3) that she was discharged or adversely affected, in whole or in part, because of her disability." Ruiz Rivera v. Pfizer Pharms., LLC, 521 F.3d 76, 82 (1st Cir. 2008); see also Orta-Castro v. Merck, Sharp & Dohme Quimica P.R., Inc., 447 F.3d 105, 111 (1st Cir. 2006). If the plaintiff establishes a prima facie case, an inference of intentional discrimination is raised, and the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for its employment decision. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Ingram v. Brink's, Inc., 414 F.3d 222, 230 (1st Cir. 2005). Finally, if the defendant does so, the burden of production shifts back to the plaintiff, and the plaintiff must proffer evidence to establish that the defendant's non-discriminatory justification is mere pretext, cloaking discriminatory animus. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817; Ingram, 414 F.3d at 230. Should the plaintiff fail "to make it past the first stage, i.e., to aver a prima facie case, the inference of discrimination simply never arises and the employer's motion for summary judgment is granted." Ingram, 414 F.3d at 230.
There is no dispute that Mr. Burnett satisfies the first element, so the Court turns to the other elements of Mr. Burnett's prima facie case.
Mr. Burnett bears the burden of proving that he is a "qualified individual," which means "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). "The analysis is generally broken into two steps: (1) whether the employee could perform the essential functions of the job; and (2) if not, whether any reasonable accommodation by the employer would enable him to perform those functions." Ward v. Massachusetts Health Research Institute, Inc., 209 F.3d 29, 33 (1st Cir. 2000) (citing White v. York Int'l Corp., 45 F.3d 357, 361 (10th Cir. 1995)). When the essential functions of the job are contested, however, "it is difficult to separate the analysis in this manner." Ward, 209 F.3d at 34.
Although Mr. Burnett has the burden of showing that he is capable of performing the essential functions of a reservation agent, AmeriPort "bear[s] the burden of proving that a given job function is an essential function." Ward, 209 F.3d at 35 (justifying the burden by arguing that the employer "has better access to the relevant evidence" to prove essential job functions). An essential function is a "fundamental job duty of the position at issue," which "does not include marginal tasks." 29 C.F.R. § 1630.2(n)(1); Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 88 (1st Cir. 2012) (quoting Kvorjak v. Maine, 259 F.3d 48, 55 (1st Cir. 2001)) (internal quotations
A court must give a "significant degree" of deference to an employer's business judgment about the necessities of a job. Jones, 696 F.3d at 88. The First Circuit has made "equally clear, however, that the employer's good-faith view of what a job entails, though important, is not dispositive." Id. (quoting Gillen v. Fallon Ambulance Servs., Inc., 283 F.3d 11, 25 (1st Cir. 2002)). "In the final analysis, the complex question of what constitutes an essential job function involves fact-sensitive considerations and must be determined on a case-by-case basis." Gillen, 283 F.3d at 25.
AmeriPort argues that Mr. Burnett could not perform all of the essential functions of his job, relying on the First Circuit's teaching that "attendance is an essential function of any job." Colon-Fontanez v. Municipality of San Juan, 660 F.3d 17, 33 (1st Cir. 2011) (quoting Rios-Jimenez v. Principi, 520 F.3d 31, 42 (1st Cir. 2008)). The problem with AmeriPort's argument is that Mr. Burnett did not have an attendance problem so much as a tardiness problem. The Court does not view these as presenting exactly the same obstacle to job performance. Except in circumstances not present here, an employee must come to work in order to work. But whether there is latitude in precisely when the employee arrives is a different matter. While many jobs undoubtedly require consistently prompt arrivals, a reasonable jury could find that it was not essential for AmeriPort's call center reservations agents because it used staggered shifts and the number of workers present at each shift often varied. The record also indicates that Mr. Burnett generally received positive performance reviews, indicating that he was capable of performing his essential job duties despite his pattern of tardiness captured in the corrective actions.
Accordingly, the Court finds that Mr. Burnett has met his burden on the second element of his prima facie case.
"Determining whether an action is materially adverse necessarily requires a case-by-case inquiry." Blackie v. State of Me., 75 F.3d 716, 725 (1st Cir. 1996).
Id. at 725-26 (internal citations omitted); see also Noviello v. City of Boston, 398 F.3d 76, 88 (1st Cir. 2005); White v. New Hampshire Dep't of Corr., 221 F.3d 254, 262 (1st Cir. 2000) ("Adverse employment actions include `demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations, and toleration of harassment by other employees'") (quoting Hernandez-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998)).
Neither do the corrective actions constitute "unwarranted negative job evaluations" that could rise to the level of an adverse employment action. It is true that many employees find it frustrating to be "written up," particularly if they believe that it resulted from events beyond their control. But, apart from the write-up itself, there is no evidence in the record that any negative consequences flowed from these corrective actions. The only evidence in the record indicates that AmeriPort disciplined or warned Mr. Burnett in an attempt to reduce his tardiness, a conclusion bolstered by AmeriPort's offer to adjust his schedule so that Mr. Burnett could improve his punctuality. Even assuming that some of those instances of tardiness included in the corrective actions were disability-related, that does not make the corrective actions adverse employment actions. Mr. Burnett suggests that each corrective action carried the "threat of discharge," but that never occurred and there is no other indication in the record that the corrective actions resulted in other material negative consequences, like reduced pay or missed opportunities.
The question about time spent in the bathroom from one of Mr. Burnett's supervisors during an annual performance review did not constitute an adverse action either. Nor is it direct evidence of discriminatory animus. Even according to Mr. Burnett's description of the incident, it was brief, occurred in private, was free of mockery or intentional insult, and was never raised again. It was understandable that Mr. Burnett found this question awkward or embarrassing, particularly if the supervisor was not sensitive in her delivery. But the evidence in the record here confirms that Mr. Burnett's supervisor merely asked whether he needed additional time in the bathroom due to his disability and when he responded affirmatively, the supervisor made no further inquiry. Furthermore, there is no evidence that the employer sanctioned Mr. Burnett as a result of additional time in the bathroom. From the Court's perspective, it cannot be inappropriate for an employer merely to ask an employee whether an aspect of the employee's performance is related to a disability so long as the employer does not hold an affirmative response against the employee. If an employee does not affirmatively inform the employer, the Court is unclear how an employer is to know, unless the employer asks the question.
Mr. Burnett has not produced any cases finding an adverse employment action in similar circumstances. While the Court accepts that many of the incidents were uncomfortable for Mr. Burnett, it cannot conclude that a reasonable jury could find that any of them constituted an adverse employment action.
Alleging constructive discharge presents a "special wrinkle" that amounts to an additional prima facie element in an employment discrimination case. Landrau-Romero v. Banco Popular de Puerto Rico, 212 F.3d 607, 613 (1st Cir. 2000) (citation omitted). A plaintiff who seeks to withstand summary judgment on a claim of constructive discharge must point to evidence in the record showing that, as a result of discrimination, her
Although constructive discharge is usually a fact-intensive inquiry, Willinghan v. Town of Stonington, 847 F.Supp.2d 164, 191 (D. Me. 2012) (citing Stremple v. Nicholson, 289 F. App'x. 571, 574 (3d Cir. 2008)), even viewing the evidence in the light most favorable to Mr. Burnett, the Court is unable to conclude that a reasonable jury could find that his working conditions were so difficult or unpleasant that a reasonable person in his shoes would have felt compelled to resign. This is true even considering all of the incidents over the nearly seven years he was employed at AmeriPort. Mr. Burnett's own statements about his motivations counter a finding of constructive discharge, which is confirmed by the fact that his work environment in the FIT department for the last seven months before his resignation was without incident or complaint.
The Court is sympathetic to the obstacles Mr. Burnett faced, but none of AmeriPort's actions individually or collectively rose above the "ordinary, if occasionally unpleasant, vicissitudes of the workplace" and "commonplace indignities" that are to be distinguished from hostile environments that result in constructive termination. See Noviello, 398 F.3d at 92. Accordingly, the Court concludes that AmeriPort is entitled to summary judgment on the disparate treatment issue.
Under the ADA, the term "discriminate" also includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability... unless the accommodation would impose an undue hardship on the operation of the business." Id. § 12112(b)(5)(A); see Higgins, 194 F.3d at 264. The McDonnell Douglas model does not apply because intentional discrimination is not required to prove a failure to accommodate. Higgins, 194 F.3d at 264 (stating that "[i]t follows inexorably that the McDonnell Douglas scheme is inapposite in respect to such claims").
An accommodation "enable[s] an individual with a disability who is qualified to perform the essential functions of that position ... [or] to enjoy equal benefits and privileges of employment." 29 C.F.R. § 1630.2(o)(1)(ii), (iii). A plaintiff in a failure to accommodate case has the burden of proving the following elements: (1) that the individual was disabled within the meaning of the ADA; (2) that the individual was qualified to perform the essential functions of his job with or without a reasonable accommodation; and (3) that the employer knew of the disability and did not reasonably accommodate it. Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 102 (1st Cir. 2007); Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir. 2002) (citing Higgins, 194 F.3d at 264); see also Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 86-89 (1st Cir. 2012).
"In order to prove `reasonable accommodation,' a plaintiff needs to show not only that the proposed accommodation would enable her to perform the essential functions of her job, but also that, at least on the face of things, it is feasible for the employer under the circumstances." Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 (1st Cir. 2001). "If [the] plaintiff succeeds in carrying this burden, the defendant then has the opportunity to show that the proposed accommodation is not as feasible as it appears but rather that there are further costs to be considered, certain devils in the details." Id.
Mr. Burnett and AmeriPort repeatedly engaged in the interactive process throughout Mr. Burnett's employment. When Mr. Burnett sought wheelchair accessible entry to the rear of the building, AmeriPort provided a key card for him to access the rear guest door with the handicapped accessible ramp. When this accommodation proved less than ideal after the keycard often failed to work properly and there was damage to the door, AmeriPort provided Mr. Burnett's preferred accommodation by leaving that door unlocked. After Mr. Burnett's access was limited one morning following a snowstorm, AmeriPort provided an accommodation by allowing him to park under the front lobby canopy in the event of future problems accessing the rear door. After the move to the new golf club location, when Mr. Burnett reminded AmeriPort that he could not use the bathroom, AmeriPort quickly altered the bathroom, and Mr. Burnett told them it would meet his needs. The Court also notes that these requests and accommodations occurred well before the 300-day window preceding Mr. Burnett's Charge and, therefore, would be time barred even if AmeriPort's conduct constituted a denial of a reasonable accommodation. See Thornton, 587 F.3d at 33 ("Mr. Thornton did not file timely charges related to any alleged act of discrimination other than the single act identified in his 2001 MCAD charge. His civil action, therefore, cannot reach these additional acts").
Regarding the unexpected elevator malfunction, Mr. Burnett failed to meet his burden of showing that AmeriPort did not reasonably accommodate his disability, even viewing the facts in the light most favorable to him at summary judgment. That was a brief interruption in access, and there is no indication in this record that AmeriPort could have completely avoided all such interruptions. Mr. Burnett does not cite any authority that AmeriPort was obligated to pay Mr. Burnett for the shift he missed, but AmeriPort paid Mr. Burnett for the time the elevator was not working, which amounted to half of the missed shift. After Mr. Burnett filed his Charge, AmeriPort paid him for missed hours which covered more than the remaining two and one-half hours he sought for the elevator malfunction.
During the scheduled repairs, AmeriPort made a temporary workspace so that Mr. Burnett could continue working. Although he could not access the usual workspace on the upper floor, this was temporary and there is no suggestion in the record that the repairs were unreasonably delayed. The ADA public accommodation standards are helpful:
Partelow v. Massachusetts, 442 F.Supp.2d 41, 48-49 (D. Mass. 2006). The Court is persuaded that Mr. Burnett's interpretation of "failing" to accommodate goes too far because:
Thill v. Olmsted Cty., No. 08-CV-4612 PJS/JSM, 2010 U.S. Dist. LEXIS 87215, at *17-18, 2010 WL 3385234, at *6 (D. Minn. Aug. 24, 2010) (quoting U.S. Dep't of Justice, The Americans with Disabilities Act: Title II Technical Assistance Manual (1993))
The Court understands Mr. Burnett was not entirely satisfied with his temporary workspace because he did not have uninterrupted access to a drinking fountain or a microwave and felt segregated from the other employees. While these frustrations are entirely understandable, limited access to a drinking fountain and the lack of a microwave, for which he never asked, simply do not render AmeriPort's accommodation unreasonable. "The ADA provides a right to reasonable accommodation, not to the employee's preferred accommodation." E.E.O.C. v. Agro Distribution, LLC, 555 F.3d 462, 471 (5th Cir. 2009); (citing Hedrick v. Western Reserve Care System, 355 F.3d 444, 457 (6th Cir. 2004)); E.E.O.C. v. UPS Supply Chain Sols., 620 F.3d 1103, 1110 (9th Cir. 2010); Emerson v. N. States Power Co., 256 F.3d 506, 515 (7th Cir. 2001).
According to Mr. Burnett, AmeriPort provided a temporary workspace, including a makeshift break room, altered the desk when he told them it was not satisfactory, and adjusted the schedule to prevent the employees from getting in each other's way. No reasonable jury could find this temporary situation during elevator maintenance to constitute a failure to accommodate Mr. Burnett's disability. Regarding his second frustration, that he felt segregated from other employees, Mr. Burnett has not met his burden of putting forth a reasonable accommodation that would have addressed the segregation issue during the elevator repair.
The remaining incident is Mr. Burnett's request for push-button access to the
This accommodation might not have been needed for Mr. Burnett to perform the essential functions of his position and enjoy equal benefits and privileges of employment. Many cases teach that all requests are not "reasonable" or are not "accommodations" within the meaning of the ADA when they are not needed, given the other circumstances and the other accommodations the employer has provided.
Noll v. Int'l Bus. Machines Corp., 787 F.3d 89, 95 (2d Cir. 2015); Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 225 (5th Cir. 2011) ("None of the information Griffin provided UPS indicated that his requested accommodation was necessary for the management of his diabetes"); Rauen v. U.S. Tobacco Mfg. Ltd. P'ship, 319 F.3d 891, 897 (7th Cir. 2003) ("[W]e do not answer the question today of whether any accommodation could ever be reasonable for an employee who can perform all essential job functions without accommodation. But Rauen's ability to perform the essential functions of the job without accommodation surely weighs against the reasonableness of an accommodation"); Black v. Wayne Ctr., 225 F.3d 658 (6th Cir. 2000) ("[W]e think that where plaintiff is able to perform the job without accommodation, plaintiff cannot demonstrate the objective reasonableness of any desired accommodation"); Fink v. New York City Dep't of Personnel, 53 F.3d 565, 567 (2d Cir. 1995) ("It does not require the perfect elimination of all disadvantage that may flow from the disability; it does not require a lowering of standards.... It does not require the employer to provide every accommodation the disabled employee may request, so long as the accommodation provided is reasonable"
The Court cannot say, on this record at summary judgment, that Mr. Burnett plainly enjoyed equal benefits and privileges of employment during the time he worked in the golf club location without any modification to the doors because there is evidence that it was difficult for Mr. Burnett to enter and exit the workplace. Depending on how heavy the lobby doors were, it might have been quite difficult to operate for someone in a wheelchair or it might have been only a minor inconvenience that did not sufficiently interfere with Mr. Burnett's ability to access his
The timing of Mr. Burnett's request for an accommodation related to the wooden doors presents an additional wrinkle. When an employer explicitly refuses a request for an accommodation, the refusal represents a discrete act triggering the statutory limitations period. Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 129 (1st Cir. 2009). Even without an explicit denial, "unreasonable delay may amount to a failure to provide reasonable accommodations." Valle-Arce v. Puerto Rico Ports Auth., 651 F.3d 190, 200 (1st Cir. 2011). When there is no explicit denial, for purposes of the 300-day time limit, the refusal occurs or accrues when the employee "knew or reasonably should have been aware that the employer was unlikely to afford him [or her] a reasonable accommodation." Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 133 n.10 (1st Cir. 2009) (quoting Ocean Spray Cranberries, Inc. v. Massachusetts Comm'n Against Discrimination, 441 Mass. 632, 808 N.E.2d 257, 268 (2004)).
Mr. Burnett first addressed the wooden doors as one of several requests in his December 24, 2013 email, which preceded the 300-day time window that started on September 2, 2014. Mr. Burnett did not receive a response, and AmeriPort did not alter the doors until after he resigned. Mr. Burnett raised the issue again on August 28, 2014, and Mr. Burnett discussed the heavy wooden doors in his Charge on June 29, 2015. AmeriPort's non-response to Mr. Burnett's first request is, therefore, time barred. But the failure to respond to the second request is an independent discrete act which occurred within the 300-day window because there is no evidence that Mr. Burnett knew or reasonably should have known that AmeriPort was unlikely to grant the request within the five days that elapsed between the date of his second request and the start of the 300-day window.
Finally, the Court notes that, even if AmeriPort were required to grant Mr. Burnett's request, whether he sustained any damages from its failure to do so is a close issue. Compensatory damages are available for violations of the ADA, which contemplates and caps damages for "emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses." 42 U.S.C. § 1981a(a)(2), (b)(3); Hogan v. Bangor & Aroostook R. Co., 61 F.3d 1034, 1037-38 (1st Cir. 1995); see also 5 M.R.S. § 4613(2)(B)(8)(e) ("emotional pain, suffering, inconvenience, mental anguish..."). But the discrimination statutes do not "provide statutory authority for automatic or presumptive damages." Azimi v. Jordan's Meats, Inc., 456 F.3d 228, 234 (1st Cir. 2006). "The availability of noneconomic damages ... does not mean that their recovery is automatic whenever a plaintiff prevails." Id. (quoting Lindemann & Grossman, 2 Employment Discrimination Law 1828 (3d ed.1996)). "An award of damages for emotional distress must be supported by competent evidence of genuine injury, the proof of which is distinct from the proof required to show discrimination...." Id. (internal citations and quotation marks omitted).
Most of Mr. Burnett's testimony regarding damages is consistent with a vague sense of frustration and feeling brushed off. Burnett Dep. at 88:11-89-19. According to Mr. Burnett, the incidents over the course of his employment caused him stress and occasionally would cause difficulty
Id. at 45:14-46:4, 148:15-149:14. Mr. Burnett never sought medical attention nor filed a worker's compensation claim and did not suffer a lasting injury to his wrist, and he never sought psychiatric help or therapy. Id. at 45:14-46:4, 89:3-10, 148:15-149:14.
In short, while the evidence supporting Mr. Burnett's claim of "genuine injury" resulting in damages is tenuous, the ADA's use of the word "inconvenience" counsels against resolving Mr. Burnett's failure to accommodate claim at summary judgment.
Accordingly, AmeriPort is not entitled to summary judgment on Mr. Burnett's failure to accommodate claim regarding his requests for alterations to the heavy wooden doors at the golf club location.
The retaliation provision of the ADA provides:
42 U.S.C. § 12203(a). To establish a claim of retaliation under the ADA, a plaintiff must show (1) that he engaged in protected conduct, (2) that he suffered an adverse employment action, and (3) that there was a causal connection between the protected conduct and the adverse employment action. Carreras v. Sajo, Garcia & Partners, 596 F.3d 25, 35 (1st Cir. 2010). If a plaintiff is able to make out a prima facie case, the McDonnell Douglas burden-shifting framework applies as described above in subpart B-1. See Carreras, 596 F.3d at 36. "If the employer produced a legitimate
Since there is no mention of retaliation in Mr. Burnett's Charge — in those words specifically or in liberally construed substance — in this forum, he can only raise those incidents occurring after his Charge as retaliatory acts in response to his Charge. But even considering all the incidents in the record, the Court has already determined that Mr. Burnett did not suffer any adverse employment action. Accordingly, AmeriPort is entitled to summary judgment on Mr. Burnett's ADA retaliation claim.
The elements and procedures of Mr. Burnett's state law claims for discrimination and retaliation are substantially the same as his federal claims, and courts construe and apply the MHRA "along the same contours as the ADA." Dudley v. Hannaford Bros., Inc., 333 F.3d 299, 312 (1st Cir. 2003). Accordingly, AmeriPort is entitled to summary judgment on Mr. Burnett's state law claims, except for the wooden doors accommodation issue.
The Court DENIES the Defendants' Amended Motion for Summary Judgment (ECF No. 71) as to Counts I and IV regarding the failure to accommodate issue concerning the heavy wooden doors at the golf club location. The Court GRANTS the Amended Motion as to Count II and Count III, and GRANTS the Amended Motion on Counts I and IV on all other issues except the failure to accommodate issue concerning the heavy wooden doors at the golf club location.
SO ORDERED.
On September 6, 2016, Ocean Properties filed a motion to dismiss the complaint under Rule 12(b)(1) and 12(b)(6), asserting, among other things, that it is not a proper party to the lawsuit. Def.'s Mot. to Dismiss Pl.'s Compl. (ECF No. 5). On September 26, 2016, Mr. Burnett filed an amended complaint pursuant to Rule 15(a) in which he added AmeriPort as a party defendant. First Am. Compl. (ECF No. 7) (Am. Compl.). On November 25, 2016, the Defendants filed a partial motion to dismiss Mr. Burnett's Amended Complaint, as well as a motion to strike certain allegations in the Amended Complaint. Defs.' Partial Mot. to Dismiss Pl.'s Am. Compl. and Mot. to Strike Impertinent Allegations (ECF No. 19). On April 11, 2017, the Court denied the motion to dismiss and the motion to strike because a more detailed factual record was needed in order to determine if the two entities shared an identity of interest. Order on Mot. to Dismiss (ECF No. 37).
The parties do not make additional arguments in their summary judgment memoranda based directly on the identity of interest question, and they have not submitted additional evidence to assist the Court. But the issue pervades their responses to each other's statements of facts. Throughout their statements of facts the parties attribute the same facts to different entities. For example, Mr. Burnett sometimes describes his employer as Ocean Properties and the actions of his supervisors as the employees or agents of that company and of AmeriPort, whereas the Defendants ascribe those actions and individuals to AmeriPort only.
Since the issue now appears to be ancillary, and because the Court is obligated to view contested facts in the light most favorable to Mr. Burnett, see footnote 2, throughout this order the Court frequently uses "AmeriPort" to refer to both companies but adopts Mr. Burnett's perspective of an identity of interest such that the actions of AmeriPort may be attributed to Ocean Properties. At other times, the Court resolves ancillary factual disputes by replacing certain references to one company with the other company or both companies.
The local rules require a short, plain statement of fact. D. ME. Loc. R. 56(b) (emphasis supplied). Without taking a position on any of the issues discussed in those paragraphs, and without delving into philosophical questions about the validity of fact-value distinctions, the Court does not include those statements because they represent legal arguments and conclusions or moral claims, not statements of facts for a Court to consider at summary judgment. See e.g. Bourgoin v. Sebelius, 296 F.R.D. 15, 22 (D. Me. 2013) ("Statements of law are not statements of fact. Legal argument is more properly included in a memorandum of law than in a statement of material facts ...."); David Hume, A Treatise of Human Nature at 469-70 (1739) ("I have always remark'd, that the author proceeds for some time in the ordinary way of reasoning ... when of a sudden I am surpriz'd to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not.").
Mr. Burnett also denied this statement, indicating the doors were installed before portions of the building were renovated and did not meet the newer updated standards. PRDSMF ¶ 66. AmeriPort's statement is supported by Mr. Burnett's own deposition testimony, and the citations in Mr. Burnett's denial speak to the time frame of the door installation, not to Mr. Burnett's knowledge of their compliance with ADA requirements. The Court includes AmeriPort's statement about Mr. Burnett's knowledge at the time, but does not make an inference as to the truth of the doors' compliance.
Mr. Burnett also says he "lacks sufficient information to admit or deny this statement" about what happened after his resignation. PRDSMF ¶ 68.
Local Rule 56(b) requires a party moving for summary judgment to file a statement of material facts, with a record citation supporting each separate fact. D. Me. Loc. R. 56(b). Local Rule 56(c) provides that a party opposing a motion for summary judgment shall admit, deny, or qualify the movant's statement of material facts and, unless a fact is admitted, "shall support each denial or qualification by a record citation as required by this rule." D. Me. Loc. R. 56(c). Similarly, Local Rule 56(d) provides that the movant's reply to the opposing statement of facts shall admit, deny, or qualify the opposing party's additional facts and "shall support each denial or qualification by a record citation[.]" D. Me. Loc. R. 56(d). According to Local Rule 56(f), "[f]acts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted." D. Me. Loc. R. 56(f).
Here, a record citation supports the proposed statement. The opposing statement, however, does not provide a record citation and therefore fails to properly controvert the Plaintiff's proposed fact. Pursuant to Local Rule 56(f), the statement is deemed admitted. See also Chapman v. Finnegan, 950 F.Supp.2d 285, 292 (D. Mass. 2013) ("A party opposing summary judgment cannot create a genuine issue of fact by denying statements, which the moving party contends are undisputed and supported by sufficient evidence, on the basis that he lacks knowledge and information to admit or deny the statement").
DSMF ¶ 14. Mr. Burnett offered a qualification, clarifying that since he worked less than thirty-two hours per week and did not get paid time off, these were actually requests not to be put on the schedule to work, rather than requests for "time off." PRDSMF ¶ 14. The Court modifies the statement to resolve the qualification.
PRDSMF ¶ 20. Despite the additional arguments, Mr. Burnett does not appear to seriously dispute that he was in fact tardy or absent on the twenty-five occasions in the two-month period. The additional explanation admits those twenty-five occasions did occur. Since Mr. Burnett's real dispute is with the implications of this fact, and not the veracity of the statement itself, the Court rejects the denial.
The Court overrules the objection and the denial because the statement accurately restates Ms. Darsaoui's deposition testimony, which is uncontradicted in the record. The rest of Mr. Burnett's arguments about what Ms. Darsaoui should have known are not inconsistent with the statement that he never explicitly told her his tardiness sometimes resulted from his disability.
