BURNETT v. OCEAN PROPERTIES LTD et al

REPLY to Response to Motion re MOTION for Judgment as a Matter of Law

D. Me.March 1, 2019

1 UNITED STATES DISTRICT COURT DISTRICT OF MAINE RYAN BURNETT, Plaintiff, v. OCEAN PROPERTIES, LTD., and AMERIPORT, LLC, Defendants. ) ) ) ) ) ) ) ) ) ) / CASE NO. 2:16-cv-00359-JAW DEFENDANT, AMERIPORT, LLC’S REPLY IN SUPPORT OF THE MOTION FOR JUDGMENT AS A MATTER OF LAW AmeriPort, LLC (“AmeriPort”), pursuant Federal Rules of Civil Procedure 50 and 59 and District of Maine Local Rule 7(c), respectfully timely submits its Reply to Plaintiff’s Opposition to AmeriPort, LLC’s Motion for Judgment as a Matter of Law [DE 213] (the “Opposition”), filed by Plaintiff, on February 5, 2019.1 I. AmeriPort Repeatedly Raised the Argument About the Deficiencies in Plaintiff’s Charge. Plaintiff begins his Opposition by asserting that the Court is limited in its review because the administrative-exhaustion issue had not been raised in a pre-verdict motion. However, Plaintiff’s failure to exhaust administrative remedies due to his defective charge was raised in AmeriPort’s Partial Motion to Dismiss and in AmeriPort’s Answer and Affirmative Defenses. In their Final Pretrial Memoranda, OPL and AmeriPort again asserted that Plaintiff failed to include the failure to accommodate in the Charge and denied that OPL was Plaintiff’s employer. Final Pretrial Memorandum [DE 83], at p.1. And on October 8, 2018, OPL and AmeriPort filed a Motion 1 As AmeriPort joined Ocean Properties, Ltd.’s Motion for Judgment as a Matter of Law [DE 200], and because Plaintiff incorporated his arguments from his Opposition to OPL’s Motion for Judgment as a Matter of Law, AmeriPort joins OPL’s forthcoming Reply in Support of its Motion for Judgment as a Matter of Law. Case 2:16-cv-00359-JAW Document 219 Filed 03/01/19 Page 1 of 8 PageID #: 2549 2 in Limine [DE 106], seeking to exclude evidence regarding damages because “Plaintiff is precluded from recovering any such damages due to his failure to exhaust his administrative remedies as to his discrete request for “push-button” or automatic doors on August 28, 2014.” Motion [DE 106], at p. 2. The issue of whether the Charge is sufficient is a legal issue. Thus, the Court need not hear evidence before considering the issue. The issue has been raised, and the Court should consider the motion as deferred under Rule 50(a), which allows it to be renewed at this juncture. II. The Scope of Investigation Doctrine Does Not Entitle Plaintiff to Compensatory or Punitive Damages for Discrete Acts that are Time-Barred. In response to AmeriPort’s factually indisputable argument (that Plaintiff waived his right to argue that he was discriminated against for AmeriPort’s failure to install push-button doors by not including such claim in his Charge), Plaintiff argues that the Charge “explicitly” included his complaint about the doors, Opp., at 4, and in support cites to his Charge wherein he complains generally (and in conclusion) of the doors “not being handicapped accessible.” However, Plaintiff’s argument fails because, as explained in AmeriPort’s Motion for Judgment as a Matter of Law, the only issue at trial was Plaintiff’s discrete request for push-button doors made on August 24, 2014. That specific request was not in the Plaintiff’s Charge. To be clear, Plaintiff’s resort to the “scope of the investigation” doctrine is of no consequence for two reasons. First, a cursory reading of the charge shows that Plaintiff made detailed allegations regarding specific dates and specific months, with detail about each alleged instance of discrimination (none of which included a reference to August 2014). Given the level of specificity as to the other allegations, neither AmeriPort (nor OPL) would have reason to conduct exhaustive computer searches to identify instances of discrimination. Second, Plaintiff ignores the clear language from the highest court in this Country that Case 2:16-cv-00359-JAW Document 219 Filed 03/01/19 Page 2 of 8 PageID #: 2550 3 “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); see also Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 639 (2007) (“Morgan is perfectly clear that when an employee alleges ‘serial violations,’ i.e., a series of actionable wrongs, a timely EEOC charge must be filed with respect to each discrete alleged violation”) superceded on other grounds by Lilly Ledbetter Fair Pay Act of 2009, Pub.L. No. 111–2, 123 Stat. 5; Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 129 (1st Cir. 2009) (“An employer’s duty to accommodate an employee’s disability is ordinarily activated by a request from the employee and the request must be ‘sufficiently direct and specific’ to give the employer notice of the needed accommodation. If the request is refused, ‘the refusal is a discrete discriminatory act triggering the statutory limitations period.’”). Thus, even if Plaintiff’s request for push-button doors was within the “scope of the investigation,” they are time barred. Accordingly, judgment for AmeriPort should be entered. III. Plaintiff Failed to Show How Push-Button Doors Were Necessary to Perform the Essential Functions of His Job. Plaintiff argues that his requested accommodation, namely, push-button doors, was necessary to perform his job. As set forth below and in AmeriPort’s Motion for Judgment as a Matter of Law, the evidence shows that it was not. Plaintiff essentially concedes that no courts hold access is an essential function by stating, “whether access to the work building itself is an essential function of a job” is a “novel issue.” Opp., at 213. Importantly, Plaintiff has not established, neither at trial nor in his Opposition, how his request would assist him in performing the essential functions of his job. See Corujo Martinez v. Triple-S, Inc., 519 F. Supp. 2d 201, 216 (D.P.R. 2007) (“The ADA requires a reasonable accommodation to allow a disabled individual to perform the essential duties of the position, not Case 2:16-cv-00359-JAW Document 219 Filed 03/01/19 Page 3 of 8 PageID #: 2551 4 to accommodate the medical needs.”); Brookins v. Indianapolis Power & Light Co., 90 F. Supp. 2d 993, 1003 (S.D. Ind. 2000) (“[A]n employer’s obligation to make ‘reasonable accommodations’ only extends to job-related adjustments or modifications.”); Burnett v. Western Resources, Inc., 929 F. Supp. 1349, 1358 (D. Kan. 1996) (“Only job-related adjustments or modifications, which enable an individual to perform the duties of a particular job, are required as reasonable accommodations. An employer is not required to provide modifications which assist an individual throughout his or her daily activities, on and off the job.”). To the contrary, the evidence showed that he was able to perform the essential functions of his job without accommodation. He was able to enter the building each day, Trial Tr. [DE 190], at p. 85; ln. 25; he had all of the equipment necessary to perform his job, Trial Tr. [DE 190], at p. 107; ln. 1; and he performed his job well, Trial Tr. [DE 106], at p. 106; ln. 23. Plaintiff stated that “entering one’s workplace without difficulty, however, unarguably allows the employee to be present so he can perform the essential functions of his job.” In other words, the benefit that would be provided to Plaintiff would be allowing him to be present, which, as noted above, he was. He went to work every day and was able to perform his job exceptionally well, which is evident by his performance evaluation. Trial Tr. [DE 191], at p. 284-85. Thus, Plaintiff has not shown how the push-button doors were necessary for him to perform the essential functions of his job and, as a result, AmeriPort is entitled to judgment as a matter of law on this point. IV. Plaintiff Did Not Meet His Burden to Show Malice or Reckless Indifference. Plaintiff argues that he has met the burden necessary for an award of punitive damages because the jury “heard evidence that showed a pattern of at least reckless indifference.” Plaintiff relies primarily on three facts: (1) that no one conveyed any information to Plaintiff about the Case 2:16-cv-00359-JAW Document 219 Filed 03/01/19 Page 4 of 8 PageID #: 2552 5 doors; (2) that no one at AmeriPort or Ocean Properties, Ltd. had any conversations with Ms. Darsaoui about other ideas to accommodate Mr. Burnett; and (3) that the cost of installing push- button doors was never looked into. These facts do not establish, by clear and convincing evidence,2 malice or reckless indifference as interpreted by the U.S. Supreme Court. See Kolstad v. American Dental Assoc., 527 U.S. 526 (1999). The Kolstad standard, which is not just “indifference,” but requires a showing of “reckless indifference,” provides: The employer must act with ‘malice or with reckless indifference to [the plaintiff’s] federally protected rights.’ § 1981a(b)(1) (emphasis added). The terms ‘malice’ or ‘reckless indifference’ pertain to the employer’s knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination. Id. at 535; see also Marcano-Rivera v. Pueblo Intern., Inc., 232 F.3d 245, 249 (1st Cir. 2000) (holding that evidence was insufficient to merit punitive damage instruction where it did not demonstrate that Defendant was aware that it was in violation of federal law). Plaintiff, curiously, did not address this in his Opposition. Here, as set forth in AmeriPort’s Motion for Judgment as a Matter of Law, Plaintiff presented no evidence that AmeriPort knew that its failure to accommodate Plaintiff’s request for push-button doors was a violation of federal law.3 The full picture here is that there was a total absence of evidence showing that Lori Darsaoui, the only person handling HR functions for AmeriPort, could have acted willfully or with 2 “[P]unitive damages are available only on a finding of express or implied malice by clear and convincing evidence.” Batchelder v. Realty Res. Hosp., LLC, 914 A.2d 1116, 1121 (Me. 2007). 3 It was not a violation federal law. The ADA does not require “push-button” or automatic access. United States Access Board, Chapter 4: Entrances, Doors, and Gates, https://www.access-board.gov/guidelines-and-standards/buildings- and-sites/about-the-ada-standards/guide-to-the-ada-standards/chapter-4-entrances,-doors,-and-gates (“Doors are not required to be automated, but must comply when provided.”) (last visited February 14, 2019); ADA Compliance Guide, ¶730 State Accessibility Requirements, 2006 WL 3300051 (“The ADA Standards for Accessible Design do not specifically require automatic doors, although there are requirements if automatic doors are used.”). Because automatic doors cannot be legally mandated, this Court was mistaken in denying a directed verdict for AmeriPort as trial counsel requested. The Court viewed evidence of AmeriPort purportedly ignoring Plaintiff’s request for an accommodation for automatic doors (not required as a matter of law) as possibly satisfying an "indifference” standard. Trial Tr. [DE 191], at p. 315; ln. 1-8. However, the standard is “reckless indifference” under Kolstad, not only “indifference.” “Reckless” indifference, necessary to award punitive damages, was not proven. Case 2:16-cv-00359-JAW Document 219 Filed 03/01/19 Page 5 of 8 PageID #: 2553 6 reckless indifference. Darsaoui’s testimony was clear and unequivocal: “I was aware that the doors were ADA compliant and I wanted to be sure because I don’t have knowledge of the regulations, make sure that nothing had changed and that we were still in compliance.” Trial Tr. [DE 191], at p. 242; ln. 9-12. After communication with Mooney, Darsaoui believed that as to the doors “that we were still in compliance and that there hadn’t been any changes that I needed to be aware of.” Trial Tr. [DE 191], at p. 244; ln. 2-4. Plaintiff can point to no contrary evidence of intent. There was nothing more an HR director could have or should have done to confirm her company was in compliance with the ADA, and this effort by Darsaoui absolutely negates any possibility of the presence of any possible willfulness or reckless indifference.4 In a case like this, punitive damages should not have even gone to the jury because the evidence showed Darsaoui and AmeriPort made efforts to ensure ADA compliance. Marcano- Rivera., 232 F. 3d 235. Further, under Kolstad, there could be no discrimination “in the face of a perceived risk” as Darsaoui believed there to be no risk of an ADA violation. The US Supreme Court in Kolstad specifically held that an employer will not be found to act recklessly or with willful disregard, where, as here, the employer believed that the claimed discrimination was lawful. 527 U.S. at 536. At most, actual belief of compliance would have been negligent (which AmeriPort disputes), which fails to meet the standard for willfulness and recklessness.5 4 This Court should also disregard Plaintiff’s attempt to rely on a “negative slope” as evidence of willfulness. Opp., at 9. Plaintiff did not include a negative slope allegation in his Charge, and Plaintiff flatly admitted he never raised it to anyone at AmeriPort. Trial Tr. [DE 190], at p. 92; ln. 16-18. This evidence cannot be used to show AmeriPort’s willfulness if it had no knowledge of Plaintiff’s purported difficulty. 5 Gile v. United Airlines, Inc., 213 F.3d 365, 375-76 (7th Cir. 2000) (“United’s failure to accommodate Gile’s disability amounted to negligence because it misunderstood Gile’s difficulties, did not regard her condition a disability and neglected to pursue Gile in developing an alternative accommodation. Although United wrongly believed that Gile was not disabled under the ADA and did not adequately address her accommodation request, United did not exhibit the requisite reckless state of mind regarding whether its treatment of Gile violated the ADA. The district court should have granted United’s motion for judgment as a matter of law regarding punitive damages, and we will reverse the award of punitive damages, leaving Gile with a judgment for $200,000 in compensatory damages.”); see also Lugo v. Experian Info. Solutions, Inc., No. 5:16-CV-04647-EJD, 2017 WL 3605228, at *4 (N.D. Cal. Aug. 22, 2017) (“‘[W]illfulness or recklessness is a higher standard’ than negligence.” (quoting Collins, 775 F.3d at 1336)); Singletery Case 2:16-cv-00359-JAW Document 219 Filed 03/01/19 Page 6 of 8 PageID #: 2554 7 At trial, Plaintiff failed to demonstrate that AmeriPort knew that its conduct was even discriminatory, much less a violation of the law. Moreover, this Court repeatedly recognized, when addressing the reasonable accommodation prong at the summary judgment stage, the court stated: “Mr. Burnett and AmeriPort repeatedly engaged in the interactive process throughout Mr. Burnett’s employment.” Order [DE 081], at 57 (emphasis added). As a result of AmeriPort and OPL’s debunking (at summary judgment) Plaintiff’s sprawling allegations of improper conduct, the jury did not hear AmeriPort’s repeated engagement and assistance to Plaintiff. And in addressing AmeriPort’s conduct after Plaintiff filed the Charge, the Court found Plaintiff could not even meet a prima facie case that AmeriPort failed to reasonably accommodate the specific allegations in the Charge his disability because AmeriPort corrected any conduct specifically alleged. Order [DE 081] at 59 (“Regarding the unexpected elevator malfunction, Mr. Burnett failed to meet his burden . . . After Mr. Burnett filed his Charge, AmeriPort paid him . . . .”). As a result, had Plaintiff made a Charge for the door that ultimately became the only triable allegation, the only logical conclusion is that AmeriPort would have immediately corrected it.6 Therefore, the full picture that this Court was presented with throughout the proceedings does not support “reckless indifference or willful conduct.” As such, judgment for AmeriPort should be entered. V. Conclusion For the reasons set forth above, this Court should grant AmeriPort’s Motion for Judgment as a Matter of Law. v. Equifax Info. Servs., LLC, No. 2:09-CV-489-TMP, 2011 WL 9133115, at *11–12 (N.D. Ala. Sept. 22, 2011) (noting that “reckless conduct is more than mere negligent conduct” and that reckless conduct is “distinct from negligence”). 6 However, AmeriPort was not on notice due to defects in the Charge, including its lack of specificity. Case 2:16-cv-00359-JAW Document 219 Filed 03/01/19 Page 7 of 8 PageID #: 2555 8 Date: March 1, 2019 Respectfully submitted, AMERIPORT, LLC, By Its Attorneys /s/ Maureen M. Deskins /s/ Robert P. Hayes Germani Martemucci & Hill 43 Deering Street Portland, ME 04101 (207) 773-7455 e-mail: rhayes@gmh-law.com Local counsel CERTIFICATE OF SERVICE I hereby certify that on March 1, 2019, I electronically filed the foregoing Reply in Support of Motion for Judgment as a Matter of Law using the CM/ECF system, which will send notification of such filings to counsel of record. Dated: March 1, 2019 /s/ Robert P. Hayes e-mail: rhayes@gmh-law.com GERMANI MARTEMUCCI & HILL 43 Deering Street Portland, ME 04101 (207) 773-7455 Case 2:16-cv-00359-JAW Document 219 Filed 03/01/19 Page 8 of 8 PageID #: 2556