United States District Court, D. Maine
RYAN D. BURNETT, Plaintiff,
OCEAN PROPERTIES LTD. and AMERIPORT LLC, Defendants.
ORDER ON MOTION TO DISMISS
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
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.
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
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.
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.).
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).
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.
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.
Sable Oaks Drive Call Center
2009, Ocean Properties 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.
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.
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.
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.
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.
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.
Country Club Drive Call Center
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. ¶
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.
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.
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. ¶ 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 ...