BURNETT v. OCEAN PROPERTIES LTD et alREPLY to Response to Motion re MOTION for Judgment as a Matter of LawD. Me.March 1, 2019 1 13897725.2 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 OCEAN PROPERTIES, LTD’S REPLY MEMORANDUM TO PLAINTIFF’S OPPOSITION TO MOTION FOR JUDGMENT AS A MATTER OF LAW Defendant OPL, pursuant to Fed. R. Civ P. 50 and District of Maine Local Rule 7(c), offers this memorandum in reply to Plaintiff’s Opposition.1 When confronted with OPL’s contentions that: (1) there was no evidence that OPL had any employees much less more than 500, (2) there was no evidence for the finding that OPL was an integrated employer, (3) there was no evidence for the finding that OPL was a joint employer, (4) the findings that OPL was both an integrated employer and joint employer are fatally inconsistent, and (5) the evidence was insufficient to support the finding of punitive damages against OPL, Plaintiff fails to point to specific evidence (either testimonial or documentary) to provide a sufficient foundation from which to make the inferences he claims can be made. Plaintiff instead clings to the same conclusory assertions, speculation and disconnected reference points. But none of that is sufficient and the assertions do not supplant the need for hard facts. Although the Court's review must be weighted toward preservation of the jury verdict, requiring it to view the evidence “in the light most favorable to the nonmoving party and drawing all reasonable inferences in its favor, ” McMillan v. Mass. Soc'y for the Prevention of Cruelty to 1 OPL joins and adopts those portions of AmeriPort, LLC’s separate Reply Memorandum. Case 2:16-cv-00359-JAW Document 222 Filed 03/01/19 Page 1 of 8 PageID #: 2569 2 13897725.2 Animals, 140 F.3d 288, 299 (1st Cir. 1998), a verdict can be set aside where there was “only one conclusion the jury could have reached” given the trial evidence. Id. (citing Conway v. Electro Switch Corp., 825 F.2d 593, 598 (1st Cir. 1987). This is such a case. A. Strict adherence to Rule 50 is not required. The requirement to move for judgment as a matter of law before the case is submitted to the jury is “designed to prevent unfair surprise and to provide the responding party with an opportunity to correct any deficiencies in her proof.” Lynch v. City of Boston, 180 F.3d 1, 13 n.9 (1st Cir. 1999). Accordingly, many courts take a “functional approach” rather than imposing a “formal requirement” of an explicit motion at a certain point in trial. Fed. R. Civ. P. 50, Advisory Comm. Note to 2006 Amendment; see also 9B Wright & Miller, Federal Practice & Procedure, § 2537, at 576-80 (2008) (“courts fortunately took a liberal view of what constituted a motion for judgment as a matter of law at the close of all evidence in deciding whether there was a sufficient foundation for the latter motion under Rule 50(b).”); see also Simon v. Navon, 71 F.3d 9, 14 (1st Cir. 1995) (chambers colloquy was sufficient to preserve an issue for a post-trial motion). The issue of OPL being an employer was preserved. There is no unfair surprise here as OPL’s counsel objected to the Court’s jury instructions, that included a finding by the jury that OPL was an employer or had any employees at Ameriport, when jury instructions were first being discussed, Tr. Trans. (II): 269 – 274; then offered further objection as part of her directed verdict motions made immediately prior to the Court instructing the jury. Id. at 369:20-21. One of OPL’s primary arguments in this case before, during and post-trial has consistently been that there were no OPL employees at AmeriPort. As the Court pointed out, this issue was presented, argued and thoroughly analyzed in OPL’s summary judgment motion. Id. at 273-274. Even if not properly preserved, the court has “discretion to inquire whether the record reflects an absolute dearth of evidentiary support for the jury’s verdict.” Faigin v. Kelly, 184 F.3d 67, 76 (1st Cir. 1999). Case 2:16-cv-00359-JAW Document 222 Filed 03/01/19 Page 2 of 8 PageID #: 2570 3 13897725.2 B. The trial evidence allows no reasonable inference about OPL’s size. At trial, Plaintiff relied on his own testimony, the limited testimony of Lori Darsaoui, and pieces of unrelated documents, to attempt to establish the size of both Defendants and the identity of his employer or employers. Even when construing all inferences in Plaintiff’s favor, the trial evidence did not establish that OPL had any employees or the size of OPL’s workforce. Mr. Burnett shed no light on the number of persons employed by OPL. Though he testified that he worked at the reservations center, Tr. Trans. (I) at 42-43, and “60 to 70 people” worked there when he did, id. at 43, Mr. Burnett did not identify OPL as the employer and he admitted his Form W-2 identified AmeriPort, not OPL, as his employer. With respect to his co-workers, Mr. Burnett conceded that he had no legal understanding about how OPL was related to any other companies, Tr. Trans. (I) at 109-110. Indeed, the Hiring Statement (Exhibit 2), cited by Plaintiff, refers to being “an employee of Ocean Properties, Ltd. or affiliated companies…” which proves nothing. In light of the paystub offered into evidence, Mr. Burnett may have been employed by an affiliated entity, but he failed to establish anything more. In her testimony, AmeriPort’s payroll administrator Ms. Darsaoui made it clear that she was not employed by OPL and that she received help with human resources issues from Joyce Dawson, who was also not an OPL employee. Tr. Trans. (I) at 123. Ms. Darsaoui also testified that Ms. Dawson’s boss, Tom Varley, works at PCFSI. Id. at 124. Ms. Darsaoui never testified that she was employed by OPL and she definitively stated that she did not “work in HR for the corporate office for Ocean Properties.” Id. at 123. She identified herself as Mr. Burnett’s direct supervisor and clarified that her paycheck referred to “AmeriPort d/b/a Ocean PR Trust.” Id. at 127. In response to questioning about “Ocean PR Trust,” Ms. Darsaoui testified she had no information about Ocean PR Trust or whether it had any employees. Id. Case 2:16-cv-00359-JAW Document 222 Filed 03/01/19 Page 3 of 8 PageID #: 2571 4 13897725.2 Ms. Darsaoui also testified that, in addition to handling payroll for AmeriPort, Tr. Trans. (I) at 123, she performs that function for two other entities -- Sable Golf, LLC and GHM Portland HI. Id. at 126. Faced with direct evidence undermining Plaintiff’s claim, counsel asked Ms. Darsaoui to estimate if all the employees of AmeriPort, Sable Golf, LLC and GHM Portland Holiday Inn were added together it would be over 500 employees, and she said she assumed so. Id. at 128. In response to efforts to create the inference that numerous hotels were owned by OPL, Ms. Darsaoui responded by conceding that the names of 45 properties showed up on a website with the name ophotels.com. Id. at 125-126. She testified she had no “legal knowledge” if “Ocean Properties Hotels Resorts & Affiliates was a legal entity.” Id. at 125. Cumulatively, none of that testimony establishes the number of employees, if any, employed by OPL. At best it established nothing more than one witness’s “assumption” that the total number of employees of three other entities -- AmeriPort, Sable Golf and GHM, two of which were not even parties in this case -- could exceed 500 if aggregated. That, together with the suggestion that entities may be somehow related, or as Plaintiff says “connected,” formed the sole basis for the claim that OPL had employees, which is plainly insufficient to establish how many people were employed by OPL. Because the jury was never presented facts for finding -- as either a joint employer2 (with AmeriPort) or as an integrated employer -- how many persons worked for the legal entity Ocean Properties, Ltd. in 2015, OPL is entitled to a judgment as a matter of law. C. No trial evidence infers that OPL and AmeriPort were an integrated employer. The Court expressed its intent to address what to do if the jury found OPL was both an integrated employer and a joint employer. Tr. (III) at 375. As discussed in OPL’s Rule 59 Motion, 2 Compare Astrowsky v. First Portland Mortg. Co., Inc., 887 F. Supp. 2d 332 (D. Me. 1995) (where evidence showed a leasing company used forms describing itself as an employer, wrote and signed paychecks, withheld taxes, hired and fired employees, set pay rates and actually set employee’s schedules, it was not a joint employer for ADA purposes). Case 2:16-cv-00359-JAW Document 222 Filed 03/01/19 Page 4 of 8 PageID #: 2572 5 13897725.2 the jury’s determinations that OPL was both an integrated employer and a joint employer are mutually exclusive. The serious implications of this inconsistency, for OPL, manifests itself in the jury’s determination on the number of employees associated with Mr. Burnett’s employer. Even if the Court determines that Defendants failed to object following the entry of these irreconcilable verdicts, it must grant judgment as a matter of law in favor of OPL on the jury’s integrated employer finding, which was an issue adequately preserved during trial. Plaintiff recognizes the four elements to establish an integrated employer relationship, but in arguing why the jury’s verdict ought to be sustained, points to the very evidence showing why the verdict is unsustainable. No witness (i.e., a corporate officer) or document (i.e., a corporate record) established who owned AmeriPort or OPL, or that there was any common ownership. Both Mr. Burnett and Ms. Darsaoui conceded they possessed no knowledge on that subject. With respect to common management, there is again an absence of evidence. Mr. Burnett did not establish whether “Mr. Robertshaw” worked for AmeriPort, OPL, or either entity, Tr. Trans. at 71-72, and he testified that he did not know anything about PCFSI in Portsmouth, NH, id. at 49. Ms. Darsaoui did not identify anyone who was employed by both AmeriPort and OPL. There was no testimony describing how any OPL management employee was also engaged in the management of AmeriPort, there is thus no factual foundation from which to infer that there was ever centralized control of labor relations between the Defendants. And the sole evidence was to the contrary: Ms. Darsaoui expressly testified that AmeriPort’s HR and labor decisions were made by her alone, saying “I make the final decisions in our process” and explaining she occasionally consulted Joyce Dawson of PCFSI for assistance. Tr. Trans. at 130-131. In his opposition, Plaintiff points to no fact in evidence showing that OPL exercised centralized control over labor relations3 at AmeriPort. Mr. Burnett identified several documents 3 “Centralized control of labor relations” encompasses whether the entities maintain separate HR departments, whether they make their own separate hiring, firing, disciplinary, schedule setting, job review, Case 2:16-cv-00359-JAW Document 222 Filed 03/01/19 Page 5 of 8 PageID #: 2573 6 13897725.2 that referenced the marketing umbrella – “Ocean Properties Hotels Resorts & Affiliates” – or an entity named “Ocean Properties PR Trust,” but none made direct reference to OPL nor did they contain content that supports an inference that OPL exercised centralized control. Most of Mr. Burnett’s testimony was intended to establish the identity of his employer, rather than the critical issue of centralization. For example, Mr. Burnett testified that his probationary period was “with Ocean Properties” whom he understood was his employer. Tr. Trans. at 42. He testified about a document (Tr. Ex. 13) that referenced him his 401K plan as being with OPL, id. at 53-54, and he testified that OPL’s logo appeared on documents at his work location. Id. at 51. Even the email signature automatically added to Mr. Burnett’s emails, including his resignation email, referenced “Reservations Ocean Properties Ltd.”, id. at 83, as well as the OPL logo. Id. In connection with one of his paystubs, where Mr. Burnett acknowledged references to both AmeriPort and another entity on that document, id. at 54-55, an important distinction was made. An entity named “Ocean Properties PR” appears on that paystub, but not Ocean Properties. Ltd. None of Mr. Burnett’s testimony about those records offers evidence of centralization. There is also scant evidence on the “interrelation of operations” element, as Plaintiff called no corporate witnesses but instead relied on the content found in employment-related documents, many of which included a variety of permutations of the term “Ocean Properties.” No evidence explained what the name referred to or whether it had anything to do with Ocean Properties, Ltd. Standing alone, those exhibits are legally insufficient to support any inference that must be viewed in Plaintiff’s favor. In the absence of facts on any of the four necessary elements, OPL is entitled to judgement as a matter of law on the integrated employer issue. D. No evidence of reprehensible conduct was attributed to OPL at trial. and wage setting decisions, whether the entities’ employees shift back and forth, and whether the companies use the same employee handbook and/or have the same employee policies and procedures without substantive differences. See Torres-Negron v. Merck & Co., 488 F.3d 34, 43 (1st Cir. 2007). No trial evidence was offered with respect to any of these issues. Case 2:16-cv-00359-JAW Document 222 Filed 03/01/19 Page 6 of 8 PageID #: 2574 7 13897725.2 If OPL is found not to be an integrated employer, the Court must then evaluate the evidence, if any, that demonstrates reckless disregard attributable to OPL. As a joint employer, OPL can only be held liable for its own actions. See Torres-Negron, 488 F.3d at 40 n. 6. Mr. Burnett made his request about the exterior doors only to Ms. Darsaoui. Ms. Darsaoui testified that she was the sole decisionmaker with respect to Mr. Burnett’s accommodation request. Id. at 242. Ms. Darsaoui never testified that she was employed by OPL and she definitively stated she did not “work in HR for the corporate office for Ocean Properties.” Tr. Trans. at 123. Moreover, Ms. Darsaoui testified that she took steps to verify that the doors were still in compliance, Tr. Trans. at 244, and understood that the doors were ADA-compliant. Id. Admittedly, with that information confirmed, she neglected to follow up. Nevertheless, Ms. Darsaoui made clear that she did not intentionally ignore Mr. Burnett’s request involving the doors, id. at 392, or any other issue. Id. More importantly, Mr. Burnett himself stated that he did not think, at any time, that Ms. Darsaoui acted maliciously toward him. Id. at 394. Based upon this testimony, no OPL agent was ever linked to the omission alleged by Plaintiff to have recklessly violated his statutory rights, and OPL is entitled to judgment as a matter of law. Finally, Plaintiff has argued in his Opposition to AmeriPort’s Motion for Judgment as a Matter of Law, at pp. 3-4, that OPL had at least constructive notice of the administrative proceeding because there was an identity of interest. This is inaccurate, since: (i) OPL did not have notice of the Plaintiff’s Charge of Discrimination, (ii) although Attorney Deskins represented AmeriPort before the MHRC, she was not also representing OPL (because it was not named in the Charge), and (iii) OPL could not be on notice that it had an obligation to provide a reasonable accommodation to a person that it did not employ. Respectfully submitted this 1st day of March 2019. /s/ Timothy J. Bryant Timothy J. Bryant Case 2:16-cv-00359-JAW Document 222 Filed 03/01/19 Page 7 of 8 PageID #: 2575 8 13897725.2 PRETI, FLAHERTY, BELIVEAU & PACHIOS, LLP One City Center, P.O. Box 9546 Portland, ME, 04112-9546 (207) 791-3000 tbryant@preti.com Attorney for the Defendant Ocean Properties, Ltd. Case 2:16-cv-00359-JAW Document 222 Filed 03/01/19 Page 8 of 8 PageID #: 2576