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Burnett v. Ocean Properties Ltd.

United States District Court, D. Maine

April 11, 2017

RYAN D. BURNETT, Plaintiff,



         A disabled employee brings suit against Ocean Properties Ltd. (Ocean Properties) and AmeriPort LLC (AmeriPort) (collectively, Defendants), alleging violations of the Americans with Disabilities Act, 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 to dismiss as to Ocean Properties, arguing that Mr. Burnett failed to exhaust his administrative remedies. Similarly, the Defendants move to dismiss as to AmeriPort, arguing that Mr. Burnett failed to file a timely civil complaint against AmeriPort. Further, the Defendants move to strike certain allegations in Mr. Burnett's Amended Complaint as impertinent.

         The Court denies the Defendants' motion to dismiss as to both Ocean Properties and AmeriPort because a more detailed factual record is necessary to determine if the two entities share an identity of interest. The Court also denies the motion to strike, concluding that the allegations may provide relevant background evidence in support of Mr. Burnett's timely claims.

         I. BACKGROUND

         A. Procedural History

         On July 1, 2016, Ryan D. Burnett filed a complaint against Ocean Properties. Compl. (ECF No. 1). Mr. Burnett alleged in the Complaint that his employer was AmeriPort LLC but that AmeriPort was “an integrated enterprise with its parent company, Ocean Properties, Ltd.” Id. ¶ 5. He then alleged that AmeriPort had been administratively dissolved and was no longer authorized to do business in the state of Maine. Id. ¶ 6. He therefore asserted that his employer was Ocean Properties as it owned and operated the hotel where he worked. Id. ¶ 7.

         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) (Defs.' Mot.). On December 16, 2016, Mr. Burnett filed a response. Pl.'s Opp'n to Defs.' Partial Mot. to Dismiss Am. Compl. and Opp'n to Mot. to Strike (ECF No. 23) (Pl.'s Resp.). The Defendants replied on December 30, 2016. Defs.' Reply in Supp. of Partial Mot. to Dismiss and Mot. to Strike Impertinent Allegations (ECF No. 24) (Defs.' Reply).

         B. The Alleged Facts[1]

         1. The Parties

         Ryan D. Burnett is a resident of Eliot, Maine. Am. Compl. ¶ 3. Mr. Burnett sustained an injury at the age of fourteen that left him paralyzed from the T-9 level of his spine, meaning that he no longer had function or sensation below the T-9 vertebra. Id. ¶ 22. Mr. Burnett has used a wheelchair his entire adult life. Id. ¶ 23.

         Ocean Properties Ltd. is a duly authorized Maine business corporation that operates numerous hotels nationwide, including the Marriott Sable Oaks in South Portland. Id. ¶ 4. Ocean Properties calls its Marriott Sable Oaks property “AmeriPort, LLC, ” or property number 219. Id. ¶ 5. Ocean Properties has employed more than five hundred employees nationwide in each of twenty or more calendar weeks in 2015 and 2016. Id. ¶ 16.

         2. 200 Sable Oaks Drive Call Center

         In May 2009, Ocean Properties[2] hired Mr. Burnett to work as a reservation agent in the Portland Marriott call center located at 200 Sable Oaks Drive in South Portland. Id. ¶ 21. Mr. Burnett is able to drive to and from work using a truck with specially designed hand controls. Id. ¶ 24. Mr. Burnett's truck includes a complex wheelchair lift that enables him to exit the vehicle on his own without assistance. Id. ¶ 25. On his very first day of work at the call center, Mr. Burnett was unable to access the building. Id. ¶ 27. The door beside the wheelchair ramp was locked, and Mr. Burnett had to wheel his chair across the lawn to get in to work. Id.

         From the early days of his employment, Mr. Burnett reported to the office manager, Carol Welch, that the building was not accessible. Id. ¶ 28. Ocean Properties' solution was to give Mr. Burnett a key card to access the door beside the accessible ramp, but the key card often did not work. Id. Ocean Properties' maintenance workers sometimes blocked the handicapped spots near the ADA accessible ramp when Mr. Burnett would try to park his truck there; when Mr. Burnett reported this to management, Carol Welch told him she could not control where people park. Id. ¶ 29.

         After a snow storm, Mr. Burnett had a hard time getting his chair through the snow, ice, and slush in the parking lot. Id. ¶ 30. On at least one occasion, the shoveled path to access the building was not wide enough for Mr. Burnett's chair to fit through. Id. ¶ 31. During one particular snow storm on New Year's Eve, the accessible ramp was not shoveled when Mr. Burnett arrived to work. Id. ¶ 32. Mr. Burnett lost one day's pay because he could not get into the building that day. Id. When Mr. Burnett reported this ADA accessibility issue to Ocean Properties' human resources department, he was told to park under a canopy in the front of the building if the parking lot was not plowed. Id. ¶ 33. However, when Mr. Burnett had parked under the canopy previously in order to access the building, the hotel manager and front desk clerk told Mr. Burnett to move his truck “or it will be towed.” Id. ¶ 34.

         As a T-9 paraplegic, Mr. Burnett has no control over bowel and bladder function and therefore has to self-catheterize four to six times per day in order to drain his bladder. Id. ¶ 35. This is a process that takes at least twenty minutes to complete, and involves the use of sterile gloves, a catheter, and a duffle bag with supplies. Id. Due to his loss of bowel and bladder function, Mr. Burnett was sometimes late to work and would explain to Ocean Properties that he was late for “personal” reasons. Id. ¶ 36. Ocean Properties never requested more information about the reason for Mr. Burnett's lateness. Id. However, an office manager for Ocean Properties was critical of Mr. Burnett for taking too long to use the bathroom during his shift. Id. ¶ 37. At one point she humiliated Mr. Burnett by asking him, “How long does it take for you to go to the bathroom?” Id.

         Mr. Burnett has suffered from bed sores and other medical issues due to his paralysis and needed to miss work for doctor appointments. Id. ¶ 38. Ocean Properties criticized Mr. Burnett for tardiness or absences directly related to and caused by his disability. Id. ¶ 39. Additionally, the chair lift in Mr. Burnett's truck often suffered mechanical failures or a blown fuse, which would cause him to be late to or absent from work; Ocean Properties held these disability-related absences against Mr. Burnett as well. Id. ¶ 40. For instance, Ocean Properties criticized Mr. Burnett for tardiness on July 2, 2010, when Mr. Burnett called out with “chair lift issues.” Id. ¶ 42. In a September 2010 corrective action, Ocean Properties wrote:

Over the past 60 days, July & August, Ryan has been late for his scheduled shifts on numerous occasions . . . Ryan is expected to arrive, on time, for all scheduled shifts. If Ryan needs to adjust his availability in order to avoid being tardy he should consider this option right away. Future attendance issues will result in disciplinary action up to and including termination.”

Id. ¶ 41.

         In 2011, Ocean Properties told Mr. Burnett that one of his ongoing goals was to “improve attendance.” Id. ¶ 43. Mr. Burnett received another corrective action on March 25, 2012, which explained, “Ryan's attendance over the past 60 days has been unacceptable. Ryan has been late for numerous scheduled shifts.” Id. ¶ 44. In this corrective action, Ocean Properties was critical of Mr. Burnett for calling out sick on January 25, 2012, and for calling out with a “chair issue” on February 9, 2012. Id. Ocean Properties wrote Mr. Burnett up again on June 24, 2012, for being “either absent from or late for an unacceptable number of shifts, ” including “May 7: called out truck trouble, ” “May 30: called out sick, ” and a doctor appointment the following day. Id. ¶ 45. Even though Mr. Burnett's absences were often related to his disability or due to mechanical factors beyond his control, Ocean Properties wrote in the June 24, 2012 corrective action that “[i]f Ryan needs to request time off he must do so at least two weeks in advance.” Id. ¶ 46. In an August 13, 2014 corrective action, Ocean Properties was critical of Mr. Burnett for calling out “sick” or “personal” on numerous occasions, most pertaining to his disability. Id. ¶ 47. In a December 2014 performance review, Ocean Properties wrote: “Ryan needs to start arriving on time or alter his availability to [better] suit his personal schedule.” Id. ¶ 48. Aside from disability-related absences, Mr. Burnett had a record of performance that met or exceeded the standards of his profession for the duration of his employment with Ocean Properties. Id. ¶ 49.

         3. 505 Country Club Drive Call Center

         In or around December 2013, Ocean Properties' reservation call center moved to 505 Country Club Drive in South Portland, Maine. Id. ¶ 50. Ocean Properties assigned Mr. Burnett to work on the second floor of the building. Id. ¶ 51. Although Mr. Burnett had already mentioned ADA accessible bathrooms to Ocean Properties, when the reservation center moved into the new building, Mr. Burnett determined that the bathrooms were not ADA compliant. Id. ¶ 52. For instance, when Ocean Properties moved into the new building, Mr. Burnett could not wheel his chair into the bathroom stall. Id. ¶ 53. Mr. Burnett reported this accessibility issue, and was subsequently forced to miss several days of work while the bathroom was renovated. Id. ¶ 54. After the renovation, Mr. Burnett was able to maneuver his wheelchair into a stall, but according to Mr. Burnett, the toilet, grab bars, and restroom sinks still failed to meet the accessibility requirements of the ADA. Id. ¶ 55.

         The entry and exit doors of the new building were also difficult for Mr. Burnett to access. Id. ¶ 56. On August 28, 2014, Mr. Burnett emailed Nick Robertshaw, the office manager, to inform him that the doors were heavy and hard for him to hold open and push a wheelchair through at the same time. Id. ¶ 57. Mr. Burnett requested that the doors be converted to push-button or automatic doors as an accommodation for his disability. Id. ¶ 58. Ocean Properties ignored the request and did not respond to Mr. Burnett's email. Id. ¶ 59.

         Mr. Burnett also had difficulty accessing the second floor of the new building when the elevators stopped working. Id. ¶ 61. On February 20, 2015, Mr. Burnett arrived at 7:00 a.m. for his shift to find that the elevator was not working. Id. ¶ 62. A supervisor determined that Mr. Burnett should be sent home until the situation was resolved. Id. ¶ 63. Ocean Properties at first refused to pay Mr. Burnett for this time that he lost from work and then offered to pay him for four hours, half of the time that Mr. Burnett missed. Id. ¶ 64. In March of 2015, Ocean Properties explained that the elevator would be taken out of service for several weeks in May for a scheduled repair. Id. ¶ 65. Ocean Properties moved Mr. Burnett to a first floor work station for the duration of the repair. Id. ¶ 66. During this time, he did not have access to the second floor employee break area. Id. ¶ 67.

         Mr. Burnett arrived for work on May 5, 2015, and discovered that the desk at his temporary first floor work station could not accommodate his wheelchair. Id. ¶ 68. On a previous tour of the area, Mr. Burnett had informed Ocean Properties that this area would not accommodate his wheelchair. Id. ¶ 69. Mr. Burnett also reported to General Manager Joyce Dawson that the work area was uncomfortably cramped because it was set up to be shared by two employees. Id. ΒΆ 70. Based on the discrimination and retaliation that he believed he encountered in the workplace, Mr. Burnett felt that he had no choice but to ...

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