GEORGE Z. SINGAL, District Judge.
Before the Court is Defendant's Motion for Summary Judgment (ECF No. 38). After carefully considering the record and the parties' briefing, the Court GRANTS IN PART and DENIES IN PART the Motion, for the reasons outlined below.
Generally, a party is entitled to summary judgment if, on the record before the Court, it appears "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). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact."
The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case.
Once the moving party has made this preliminary showing, the nonmoving party must "produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue."
Plaintiff Jai Morin has worked for Hannaford since March of 1997 and has been employed as the Assistant Meat Manager at Store No. 8229 in Waterville, Maine (the "Elm Plaza store") since 2013. Several years before the events directly at issue in this matter, Morin was diagnosed with chronic Lyme disease, a condition Morin asserts is his disability. Morin takes medication to treat the disease but still experiences symptoms including fatigue, dizziness, and pain. On days when he experiences symptoms, he may experience severe fatigue and pain that worsens later in the day. When these symptoms escalate, they make him more prone to suffer a work-related injury and less able to perform his job duties. There are some days when Morin does not experience severe fatigue or pain if he works past mid-afternoon. However, working late on those days can trigger a flare-up of his symptoms in the ensuing days; Morin's doctor refers to this as a "crash." (Dubocq Dep. (ECF No. 41-1), PageID # 1023.) Morin was approved for the use of Family and Medical Leave Act ("FMLA") leave in 2013 based on his Lyme disease but ultimately did not use the leave at that time. Morin had previously used FMLA leave in 2007 for another health condition and returned to work without any issues.
Approximately nine employees work in the meat department at the Elm Plaza store, including managers, meat cutters, and clerks or associates who perform basic cleaning and preparation tasks. In addition to the Assistant Meat Manager, the Meat Department Manager and the Service Leader manage employees in the department. The Assistant Meat Manager position description
(ECF No. 29-3, PageID # 377.) This list of essential job functions does not include a work schedule or otherwise directly reference work hours. The entire time Morin has served as Assistant Meat Manager at the Elm Plaza store, the listed essential job functions have been the same. Morin believes that role modeling, training, and developing associates are the most important leadership traits of a manager. As part of his managerial duties, when someone calls in sick and Morin is in charge, he assesses the needs of the department to determine whether to call another associate in to work or to redistribute work among present staff.
Hannaford's Retail Leadership Schedule, which was in place prior to the events at issue in this matter, states that its purpose is to ensure that "Store and Department leaders are scheduled appropriately to cover all business needs." (ECF No. 32, PageID # 555.) To that end, the policy provides in relevant part that assistant managers are expected to work one late shift (until at least 7 p.m.) each week and that assistant managers should be scheduled to work during peak business hours daily. The policy further states that the result of the scheduling guidelines will be "[c]onsistent conditions . . . creating a maximization of sales." (
Prior to his retirement in September 2015, the meat department at the Elm Plaza store was managed by Dan Knowlton, who did not follow applicable scheduling policies, including the Retail Leadership Schedule. In April 2015, Assistant Store Manager Penny Davis
One metric for measuring how well the meat department functions is maintaining good levels of inventory and avoiding "shrink," which describes when the department has to throw out inventory because it was not purchased. The Elm Plaza store meat department was one of the best in its regional district of Hannaford stores in maintaining good levels of inventory while Knowlton was Department Manager. In general, according to the key metrics Hannaford uses to evaluate financial performance, the meat department performed better financially during the December 2013 — December 2014 and September 2014 — September 2015 timeframes than it did during the August 2016 — August 2017 timeframe.
After Knowlton's retirement in September 2015, Hustus became Meat Department Manager. Morin began to be scheduled to work later in the day than he had previously been scheduled, specifically, some days until 4 p.m. and other days until 7 p.m. On December 20, 2015, Morin spoke to Virginia Moryan, the Associate Relations Manager in the Elm Plaza store, about his new schedule. Morin told her that he needed to work earlier shifts because of his medical condition. Moryan told him that he would probably need something in writing from his doctor to justify a change to his schedule and subsequently provided Morin with a form for his doctor to complete.
On or about December 31, 2015, Morin provided Moryan with the form as completed by his doctor, Richard Dubocq. On the form, Dr. Dubocq indicated that Morin has a disability that renders him unable to function well at the end of the work day. To accommodate the disability, Dr. Dubocq asked Hannaford to schedule Morin so that he finishes work by 2:30 p.m. every day. At the time, Morin regularly worked a full-time schedule of eight hours per day, five days per week, with a half hour for lunch. Therefore, to end his work day by 2:30 p.m. and maintain a fulltime schedule, Morin would need to begin working at 6 a.m. or earlier, when some employees in the meat department begin working.
Linda Shute, the Associate Relations Specialist for the area in which the store was located, talked with store management about Morin's request, the essential functions of the job, scheduling expectations, and whether Morin's unavailability after 2:30 p.m. would create a hardship for the store. Store management believed that Morin's request was not a reasonable accommodation. Shute also discussed the request with Hannaford's legal office and the director of operations for the region. After gathering all the information and discussing the matter in a collaborative manner, Shute told store management that they should inform Morin that it is not a reasonable accommodation for him to leave by 2:30 p.m. every day because it would place an undue burden on the department.
On January 6, 2016, Davis and Moryan met with Morin to discuss his request to modify his schedule. At this meeting, Morin explained that he wanted to continue to work a full-time schedule but not work past 2:30 p.m. Davis explained to Morin that Hannaford was denying his accommodation request at least in part because there was a "standard" schedule for his position that required him to work until 7 p.m. once per week and she did not want to "set precedent" by deviating from the standard schedule. (Pl.'s Am. Add'l Statement of Material Facts (ECF No. 46) ¶ 39; Def.'s Reply to Pl.'s Am. Add'l Statement of Material Facts (ECF No. 49) ¶ 39.) Davis offered several part-time positions that would allow Morin to stop working at 2:30 p.m. but which would have resulted in a reduction in pay and benefits. Morin responded that he had been working a schedule for the past five years that was basically the schedule he was now requesting, and that he did not understand why Hannaford would not let him work the requested schedule given his medical need. Finally, Davis told Morin that he could call Shute if he had any questions.
On January 9, 2016, Morin spoke again with Moryan about Hannaford's denial of his schedule request and reiterated that he did not understand why Hannaford was denying him this schedule when it was basically the schedule he had been working. On January 13, 2016, Morin submitted a note to Moryan asking Hannaford to reconsider its decision. In the note, Morin stated, among other things, that he found it difficult to manage his Lyme disease symptoms while working the schedule that Hannaford was requiring.
In a letter dated January 15, 2016, from Store Manager Rob Meader to Dr. Dubocq, Meader wrote that he understood Morin was requesting the accommodation of staying in his current position and finishing work by 2:30 p.m. every day, but that Hannaford could only meet this accommodation in a different position. Meader further wrote that Hannaford could permit Morin to work 9 a.m. to 7 p.m. on a consistent basis in his current position and asked Dr. Dubocq if that schedule would allow Morin to manage his symptoms. On January 21, 2016, Dr. Dubocq responded in a letter to Meader that he was not asking for Morin to be assigned to a different position but rather was requesting that Morin remain in his current position with a modified schedule. Dr. Dubocq further wrote, "Morin
On January 28, 2016, after conferring with Shute, Moryan spoke to Dr. Dubocq on the phone. Dr. Dubocq told Moryan, among other things, that Morin's health is good in the morning but in the late afternoon he "runs out of gas" and may "crash/retro-grade." (ECF No. 33, PageID # 650.) Dr. Dubocq further told Moryan that Morin would be fine if he could stop working every day between 2:30 and 3:30 p.m. Moryan subsequently emailed Shute with a summary of her January 28 conversation with Dr. Dubocq.
On February 4, 2016, Davis and Moryan met again with Morin to discuss his requested schedule and Davis again told Morin that Hannaford was denying his request. Davis gave Morin the choice of keeping his current schedule, resigning from Hannaford, or taking a part-time position at another store. The part-time position of up to twenty-eight hours per week would not have guaranteed Morin any hours, would have paid less than his current position, and offered fewer employee benefits. Davis initially told Morin that she needed his response by February 6, 2016, but Morin was later allowed to take two weeks of vacation to consider his options.
On February 17, 2016, Morin gave a note to Moryan stating, in relevant part, the following:
(ECF No. 32, PageID # 568.) On the same day she received it, Moryan faxed Morin's note to Shute. Shute understood that Morin was asking for reduced schedule leave under the FMLA that would allow him to finish work at 2:30 p.m. Shute told Moryan that she would contact the legal department about Morin's FMLA request and instructed Moryan to do nothing until she heard back from Shute. Shute had previously received FMLA training, knew that intermittent leave differs from reduced schedule leave, and understood that reduced schedule leave means that the employee works a consistently reduced schedule.
On February 19, 2016, Shute informed Davis and Moryan that a request for intermittent FMLA leave for Morin should be entered in Hannaford's system. Hannaford assigned Morin's FMLA request to Lisa Cote, who was a Supervisor in the Leave of Absence Administration at Delhaize America (Hannaford's parent company). Cote had received FMLA training and also knew the difference between intermittent and reduced schedule leave. Specifically, Cote understood that intermittent leave occurs at a certain frequency and for a certain duration, while reduced schedule leave provides for a consistent reduction in an employee's work schedule.
On February 22, 2016, Hannaford sent Morin FMLA information and forms, including a form titled "Certification of Health Care Provider for Employee's Serious Health Condition (Family and Medical Leave Act)," which the parties refer to as the "FMLA medical certification form." Hannaford subsequently received the completed form from Dr. Dubocq, dated March 17, 2016, in which he stated, in relevant part, that Morin suffers from severe fatigue and pain that "consistently escalate by mid-afternoon" and that "[w]hen this happens, he is more prone to work-related injury, as well as inability to perform his job duties." (ECF No. 32-1, PageID # 608.) Dr. Dubocq further stated that Morin "needs to be completing his daily shift by 2:30 pm" and that this would ensure that his "symptoms are averted, and he is thus able to perform all of his job duties." (
On March 23, 2016, after she received information from Hannaford's legal department about a business Morin ran in his spare time, Cote sent Dr. Dubocq a letter enclosing information about the business and asking Dr. Dubocq if that information changed his medical opinion.
On May 4, 2016, Cote sent Morin a letter stating that his "intermittent leave" request was approved.
(ECF No. 32-1, PageID # 615.) Cote claims that Hannaford never informed her that Morin requested reduced schedule leave and that she did not understand Dr. Dubocq's FMLA medical certification form to be requesting reduced schedule leave. Hannaford in fact never provided Cote with Morin's February 17, 2016 note in which he requested "reduced schedule FMLA leave."
On May 6, 2016, Morin was called in to a meeting with Meader and Shute. They presented him with a document titled "Record of Conversation," which Morin refused to sign. The "Record of Conversation" stated, in relevant part, that: (1) Morin had applied for intermittent FMLA leave; (2) intermittent leave of one time per week for up to eight hours had been approved; (3) Morin "can use Intermittent FMLA when [he is] having a bad day"; (4) Morin would be expected to work his scheduled shift if he was not "having a bad day"; and (5) Morin's typical schedule was going to include "working one evening until 7:00 p.m., working until 4:30 one shift and until 3:00 the other rema[in]ing shifts." (ECF No. 33-2, PageID # 671.)
On August 29, 2016, Morin gave a note to Moryan stating, in relevant part, his view that Hannaford had treated his FMLA request as a request for intermittent leave when he had actually requested reduced schedule leave, and that his doctor had requested that Hannaford schedule Morin for shifts that end by 2:30 p.m. Morin stated that when he had worked past 2:30 p.m., he had needed co-workers to cut meat for him because he was too dizzy to do so himself. He also stated his belief that he was not allowed to leave work early more than one day per week, and that Hannaford had violated his rights under the FMLA. He again requested a schedule with shifts ending by 2:30 p.m. every day as a reasonable accommodation for his disability or reduced schedule leave so that he did not have to work past 2:30 p.m. on any day. Finally, Morin requested in his note that Moryan respond in writing by September 5, 2016. Moryan faxed Morin's note to Shute, but Hannaford did not respond to Morin's note in writing, and Morin's note was never given to Cote.
On November 27, 2016, Morin emailed Moryan about his schedule, stating that working late shifts continued to be hard for him; that he was having to work when he was "run-down and dizzy"; and that he was worried working late was going to cause him to get hurt worse than just a "sore back or injured pinky toe." (ECF No. 41-8, PageID # 1071.) Morin also reiterated his request for a schedule adjustment, but Hannaford did not adjust his schedule. On February 7, 2017, Morin filed a Complaint in this Court based on his contention that Hannaford had violated federal and state law in its handling of his schedule requests. (Compl. (ECF No. 1), PageID #s 20-21.)
At some point in 2017, Hannaford provided Morin with another FMLA medical certification form that Morin gave to Dr. Dubocq. On or about May 16, 2017, Dr. Dubocq submitted the completed form to Hannaford, which stated, in relevant part:
(ECF No. 32-1, PageID # 622.)
In response to the 2017 FMLA medical certification, Cote sent Morin a letter using identical language from the prior 2016 FMLA authorization. That is, the letter states that Morin "can take time off
Based on Hannaford's tracking of his FMLA leave, Morin did not exhaust the twelve weeks of FMLA leave for which an employee is eligible between 2016 and 2017. Morin has remained the Assistant Meat Manager at the Elm Plaza store and received raises in 2016 and 2017.
Plaintiff has brought claims pursuant to the Maine Human Rights Act ("MHRA"), 5 M.R.S.A. §§ 4551-4634; the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101-12213; the Maine Whistleblowers' Protection Act ("WPA"), 26 M.R.S.A. §§ 831-840; the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601-2654; and the Maine Family Medical Leave Requirements ("MFMLR"), 26 M.R.S.A. §§ 843-848. Defendant has moved for summary judgment as to all claims.
Plaintiff has brought claims for failure to accommodate under the MHRA and the ADA (Counts II & V), and unlawful discrimination under the MHRA and the ADA (Counts I & IV).
Plaintiff contends that Defendant violated the ADA and the MHRA by failing to accommodate his request to work a modified schedule. Under the ADA, an employer must make "reasonable accommodations to the known physical . . . limitations of an otherwise qualified individual with a disability who is an . . . employee." 42 U.S.C. § 12112(b)(5)(A). "Reasonable accommodations are modifications or adjustments to the work environment, or to the manner in which the position's duties are customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position."
"An employer is obligated to provide a reasonable accommodation (as long as it is not unduly burdensome) where a protected employee has requested an accommodation or the employer otherwise knew that one was needed."
To succeed on a failure to accommodate claim under the ADA, then, "a plaintiff must show that: (1) he is a [disabled] person within the meaning of the Act; (2) he is nonetheless qualified to perform the essential functions of the job (with or without reasonable accommodation); and (3) the employer knew of the disability but declined to reasonably accommodate it upon request."
Plaintiff requested a modified full-time schedule that would allow him to end work by 2:30 p.m. every day as a reasonable accommodation (hereinafter, "Plaintiff's requested schedule"). Defendant contends that in order to perform his job Plaintiff must work until 7 p.m. one day per week and until around 4 or 5 p.m. on at least two additional days per week when the Meat Department Manager is off (hereinafter, for ease of reference only, the "standard schedule"). (
The First Circuit has concisely outlined how a court assesses what is an "essential function":
An employer's view of what is an essential job function is entitled to "substantial weight . . . in the absence of evidence of discriminatory animus."
After carefully reviewing the record, considering the relevant factors, and drawing all reasonable inferences in Plaintiff's favor, the Court concludes that there is a genuine issue of material fact as to whether adhering to the standard schedule is an essential job function of the Assistant Meat Manager position. The Court acknowledges there is some undisputed evidence supporting Defendant's position. Defendant has consistently stated its view that working a schedule consistent with the Retail Leadership Schedule is an essential job function and has communicated this to people other than Plaintiff, including the Meat Department Managers Knowlton and Hustus. In other words, it does not appear that Defendant's application of the Retail Leadership Schedule to Plaintiff is pretextual or motivated by animus. However, the record reveals genuine factual disputes as to whether requiring the Assistant Meat Manager's adherence to the standard schedule is in fact "solidly anchored in the realities of the workplace."
Defendant's rationales for adherence to the standard schedule are genuinely contested. Specifically, a reasonable factfinder could conclude that adherence to the standard schedule is not an essential job function based on the lack of any schedule requirements in the position description; evidence that Plaintiff and the department were functioning well during the years that Plaintiff was not adhering to the standard schedule;
Finally, the extent to which Morin's requested schedule would affect his ability to role model customer service, supervise employees, direct work flow, or perform other undisputed duties of his position is contested. In particular, a reasonable factfinder could conclude that Plaintiff's requested schedule would not affect his ability to perform other aspects of his job given the evidence (1) that Plaintiff met Defendant's job-related expectations during the period that he was substantially working his requested schedule; (2) that the meat department met Defendant's performance expectations during that period; and (3) that any concerns on the part of management about the performance of the meat department during that period were not, in fact, connected to Plaintiff's schedule. Defendant's concern about "setting precedent" by providing Plaintiff with a modified schedule carries little weight in light of the fact that a reasonable accommodation is by its very nature a change in the status quo.
Defendant's arguments in support of summary judgment are off the mark. The axiom that "attendance is an essential function of any job" is inapposite because it applies to an employee's efforts to maintain employment without being present in the workplace, rather than an employee's efforts to modify his work schedule.
The Court also notes that
Finally, the Court is not convinced by Defendant's contention that its provision of FMLA leave constituted a reasonable accommodation. Putting aside the issues with the nature of the FMLA leave,
As the Fifth Circuit recently explained,
For these reasons, Defendant's Motion is DENIED as to Plaintiff's failure to accommodate claims under the MHRA and the ADA (Counts II & V).
Turning briefly to Plaintiff's discrimination claims, Plaintiff also contends that Defendant discriminated against him within the meaning of the ADA and the MHRA by refusing to provide him with his requested schedule. The "ADA's definition of discrimination includes `not making reasonable accommodations to the known physical . . . limitations of an otherwise qualified individual with a disability . . . unless [the] covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the [entity's] business.'"
Plaintiff contends that he was unlawfully retaliated against for exercising his rights under the ADA, the MHRA, the WPA, the FMLA, and the MFMLR.
Regarding the allegations concerning shift coverage, Plaintiff specifically contends that, despite requesting to be called in to cover shifts, on four to six occasions in 2016 he was not called in to cover shifts when the meat department was short-staffed.
Regarding the allegations concerning punching in early, Plaintiff states that "once I received the FMLA [leave], all of a sudden they put a stop to us punching in early which was actually encouraged before that." (Morin Oct. Dep., PageID # 852.) He contends that store management "stated that they put a stop to [punching in early] within the department. . . . But it was, in fact, only me." (
It is undisputed that Hustus spoke with Plaintiff on December 21, 2015, and had him sign the Hannaford "Time Clock — Punch Accuracy" policy, which states, "[i]t is important that you punch the time clock in and out as close to your assigned shift as possible."
Plaintiff's retaliation claims all require him to establish (1) that he was engaged in protected activity, i.e., availed himself of rights under the relevant statutes; (2) that he suffered a materially adverse action or was adversely affected; and (3) that there was a causal connection between the protected activity and the adverse action.
Assuming favorably to Plaintiff that not being called in to cover shifts on four to six occasions could constitute a "materially adverse action," Plaintiff has failed to make out a prima facie case of retaliation regarding the shift coverage allegations.
Turning to the punching in early issue, the Court determines that Plaintiff's claims of retaliation under the ADA and the MHRA survive summary judgment. The Court readily determines that Plaintiff has made out a prima facie case. At the time Plaintiff was counseled by Hustus to adhere to the time clock policy, Plaintiff had already expressed a desire for a modified schedule based on medical necessity to Hannaford management. Stopping Plaintiff from clocking in early is a materially adverse action because it has the effect of reducing his pay and certainly could discourage a reasonable employee from pursuing his ADA or MHRA rights.
In response to Plaintiff's prima facie case, Defendant has offered a non-discriminatory rationale for its actions, that it was enforcing a general, pre-existing policy. This Court thus must consider whether there are triable issues of fact regarding whether this rationale is pretextual. Although it is a close call, the Court determines that there are indeed triable issues of fact. Specifically, although Hustus contends he was enforcing a general policy and that he spoke to any employee who punched in early, Breton stated that he was never made aware of the policy, that he would punch in early, and that other employees would punch in early as well.
The Court determines, however, that Plaintiff has failed to make out a prima facie case of retaliation based on his availment of rights under the FMLA/MFMLR or based on whistleblowing activity. Plaintiff was counseled regarding the time clock policy before he first asserted his rights under the FMLA in his note dated February 17, 2016. For purposes of an FMLA retaliation claim, "an employer cannot be found to have retaliated against an employee for invoking his rights under the FMLA or taking FMLA leave unless the decisionmaker knew or should have known that the employee had invoked those rights."
For these reasons, the Court GRANTS Defendant's Motion as to Count VII (WPA Unlawful Retaliation); GRANTS Defendant's Motion as to Count VIII (FMLA) and Count IX (MFMLR) to the extent they raise retaliation claims; and GRANTS Defendant's Motion as to Count III (MHRA Unlawful Retaliation) and Count VI (ADA Unlawful Retaliation) to the extent those claims are premised on Defendant's purported failure to ask Plaintiff to cover shifts. The Court DENIES Defendant's Motion as to Count III and Count VI to the extent those claims are premised on Defendant's purported efforts to prevent Plaintiff from punching in early.
In relevant part, the FMLA entitles "an eligible employee . . . to a total of 12 workweeks of leave during any 12-month period . . . [b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee."
In addition to defining an eligible employee's rights to certain leave, the FMLA also proscribes employers from interfering with an employee's exercise of his rights under the FMLA. 29 U.S.C. § 2615(a)(1) ("It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter."). To prevail on an FMLA interference claim, the employee
Defendant does not dispute Plaintiff's general entitlement to FMLA leave or contend that his request for reduced schedule leave would have exceeded his twelve weeks of leave under the FMLA. Rather, Defendant appears to contend that it did not interfere with Plaintiff's FMLA rights because it provided him with FMLA leave. On this record, however, the Court determines that there are triable issues of fact concerning whether Defendant interfered with Plaintiff's exercise of his rights under the FMLA by authorizing intermittent leave in the face of Plaintiff's request for reduced schedule leave.
At the outset, there is a crucial factual dispute concerning whether Plaintiff was in fact restricted to taking FMLA leave one day per week and would face repercussions under Defendant's attendance policies if he took leave more frequently. Plaintiff testified that he understood from the FMLA authorizations and from his conversations with management that he could only take leave one day per week. (
The Court's conclusion that Plaintiff's FMLA and MFMLR claims are not ripe for summary judgment is grounded in the record rather than the arguments in Defendant's briefs. Defendant suggests in its briefs that Plaintiff was not entitled to anything beyond the intermittent leave he was provided. However, Cote testified that she crafted the FMLA authorization based on her understanding that Dr. Dubocq was requesting leave one day per week for Plaintiff's "flareups." (
To the extent Defendant is asking the Court to make its own assessment of Plaintiff's medical necessity for leave, the Court discerns no basis in the record for determining that the reduced schedule leave Plaintiff requested is not medically necessary. Further, contrary to Defendant's argument in its Reply, Plaintiff has consistently cited both the "flare-ups" and the more frequent worsening of symptoms in the afternoon that arises from his Lyme disease.
For these reasons, the Court DENIES Defendant's Motion to as Count VIII (FMLA) and Count IX (MFMLR) to the extent they raise interference claims under those statutes.
For these reasons, the Court DENIES Defendant's Motion as to Plaintiff's MHRA discrimination claim (Count I); DENIES Defendant's Motion as to Plaintiff's MHRA failure to accommodate claim (Count II); GRANTS Defendant's Motion as to Plaintiff's MHRA retaliation claim (Count III) to the extent the claim is premised on Defendant's purported failure to ask Plaintiff to cover shifts, but otherwise DENIES the Motion as to that Count; DENIES Defendant's Motion as to Plaintiff's ADA discrimination claim (Count IV); DENIES Defendant's Motion as to Plaintiff's ADA failure to accommodate claim (Count V); GRANTS Defendant's Motion as to Plaintiff's ADA retaliation claim (Count VI) to the extent the claim is premised on Defendant's purported failure to ask Plaintiff to cover shifts, but otherwise DENIES the Motion as to that Count; GRANTS Defendant's Motion as to Plaintiff's WPA retaliation claim (Count VII); GRANTS Defendant's Motion as to Plaintiff's FMLA claim (Count VIII) to the extent the Count is based on a retaliation theory, but DENIES the Motion to the extent the Count is based on an interference theory; and GRANTS Defendant's Motion as to Plaintiff's MFMLR claim (Count IX) to the extent the Count is based on a retaliation theory, but DENIES the Motion to the extent the Count is based on an interference theory.
In short, this matter shall be set for a bench trial of the following claims: Counts I, II, IV, V, as well as Counts III & VI to the extent these retaliation claims are premised on the Defendant's purported actions to stop Plaintiff from punching in early, and Counts VIII & IX to the extent these claims are based on Defendant's purported interference with Plaintiff's rights under the relevant statutes.
SO ORDERED.
On this record, the Court determines that it is appropriate to treat adherence to the standard schedule as the relevant essential job function for purposes of deciding Defendant's Motion. This approach cuts more efficiently to the heart of the dispute; if adherence to the standard schedule is an essential job function, it follows that Plaintiff is not qualified to perform the essential functions of his job with the modified schedule he seeks. Furthermore, this approach is consistent with the First Circuit's approach in schedule modification cases.